Alternative Law Journal
In February 2000, the Legal and Constitutional Senate References Committee conducted an Inquiry into Mandatory Sentencing. It heard submissions and made findings about the lack of Freedom of Information legislation and the limited availability of statistical data in relation to crime and incarceration in the Northern Territory. The Committee Report stated that ‘a lack of accurate and detailed statistical information’ hampered the progress of the Inquiry. Because of the limited data in the Northern Territory, statistical data on the incarceration of women recently received by the Top End Women’s Legal Service (TEWLS) is significant.
Late last year, TEWLS obtained some frightening statistics from the Territory’s Department of Correctional Services’ 1999 annual report: in the year 1995/96, 50 women were imprisoned; in 1996/97, 71 women were imprisoned; in 1998/99, 276 women were imprisoned. The number of Indigenous women, in particular, rose from 59 in 1996/97 to 252 in 1998/99. These figures show a dramatic 485% rise in the number of indigenous women incarcerated in Northern Territory gaols. Overall it appears that the number of women sentenced to a term of imprisonment has increased by five times over a period of four years. Dollars Without Sense — a 1999 report by North Australian Aboriginal Legal Aid (NAALAS) — found that the number of men incarcerated in Territory prisons has risen by 96%. In contrast it shows there is an obvious, disproportionate upsurge in the number of women in prison.
In November 1999, TEWLS wrote a letter to the Territory’s Attorney-General presenting the alarming statistics. The letter queried the policy of mandatory detention and its probable detrimental effect on the increase in the number of women in Territory prisons. The Attorney- General, Mr Burke, responded with figures of his own. He stated that ‘the majority of sentenced females received into custody (61 or 65% in 1996-97 and 210 or 76% in 1998–99) were received due to fine default’. Regarding the number of women in prison he replied, ‘most of these (44 in 1996–97 and 171 in 1998-99) resulted from offences against good order (such as offensive/disorderly behaviour and sleeping in public places)’. In defence of the mandatory imprisonment legislation, the Attorney-General attributed the rise in the rates of female incarceration to the failure to pay minor fines for offences such as sleeping in public and offensive, disorderly behaviour.
The Darwin City Council’s use of the Territory Infringement Re-Enforcement Scheme (TINES) has been the method by which people were gaoled for minor offences. Common offences under Council by-laws involve parking violations and dog control measures. However, the by-laws also target people who offend ‘good order’ – such as sleeping in a public place. An infringement notice for the offence was issued by a council officer and the accused then had 28 days to pay the fine. On non-payment of the fine, a reminder letter was sent to the address provided at the time the infringement was committed and a further 28 days given for payment. If the fine remained unpaid, the Council sought enforcement through Division 2A of the Justices Act, which resulted in a warrant of commitment. By this time the original $50 fine had increased to approximately $150 for ‘costs’. The average time spent in detention for failure to pay a $50 fine was about three days.
Sleeping in a public place is a victimless, trivial offence. It targets the poorest and most vulnerable members of society. It is TEWLS’ experience that women are likely to be homeless in Darwin as a result of sexual assault and family violence and therefore are more prone to be fined for sleeping in a public place. In many cases, the women who fall foul of the infringement scheme are not in the position to pay the designated fine. Imprisonment is often very disruptive for communities as a whole, especially in the instance of Indigenous women with children. It is worth noting that, generally speaking, relatively few women commit serious criminal misdemeanours. It is only in the area of trivial transgressions that women appear in the criminal justice system in any significant number.
Imprisonment for such minor misdemeanours is a questionable policy. The Committee on the Elimination of Racial Discrimination in Australia, in its report for the period 1 July 1992–30 June 1998, held that the infringement enforcement scheme ‘is a form of mandatory (imprisonment). This is because periods of imprisonment are determined according to a formula, and without regard to the circumstances of the offence or the offender.’ The report went on to say ‘we are concerned that the order resulting in imprisonment is made by a Clerk without a hearing of the charge … In effect the scheme allows for imprisonment of minor offences without trial.’
Incarceration is a very expensive option. Last November TEWLS received a letter from the Office of Correctional Services stating that the cost of one prisoner is approximately $153 a day. If one woman defaulting on her fine is imprisoned for a three days sentence, the cost to the taxpayer is $459. On 21 June 1999, Lord Mayor George Brown announced to the Northern Territory News that between 1 December 1998 and 1 May 1999, 108 fines for sleeping in public places remained unpaid. It resulted in the imprisonment of 62 people. If 62 women are incarcerated a year resulting in a $28,458 bill, the amount of money involved is no longer trivial even though the misdemeanour committed was. Dollars Without Sense stresses that ‘$5 million dollars has been spent imprisoning property offenders’. Since 1996 ‘the Correctional Services budget has increased by almost $8.5 million’. TEWLS considers that the increase in the Correctional Services budget in order to house women for non-payment of fines for sleeping in a public place is a gross misuse of public funds, and further impinges on the position of the women involved and their communities.
TINES is no longer in effect. Litigation in the Northern Territory over the last six months has prompted the Territory government (and the Darwin City Council) to reconsider the enforcement of infringement notices using TINES. The Council has since ceased to use the Scheme and this fact has been confirmed by discussions TEWLS has had with the Council’s Regulatory Services Supervisor. TEWLS is led to believe that one reason for abandoning the Scheme may be concerns about the potential liability for wrongful imprisonment. However, a recent report in the Northern Territory News, dated 29 June 2000, suggests that the Council plans to begin enforcement of fines once again. A complaint and summons procedure will take effect, resulting in valuable time and resources being wasted on very trivial matters in the Magistrates’ Court. TEWLS believes that the ‘sleeping in public’ by-law and the TINES Scheme is odious, pernicious legislation. TEWLS has requested that the Darwin City Council review the by-law and repeal it altogether.
Unwanted critical national and international attention has already focused on the Territory government’s policy of detention for property offenders. The infringement legislation is a similar issue because women are imprisoned for minor transgressions for set periods without the exercise of the court’s discretion. Amnesty International has condemned mandatory imprisonment in their last two annual reports on Australia. This year, 2000, Amnesty’s campaign is the defence of women’s rights around the world. With recent research focusing on the position of women world wide, it is a timely reminder that the rights of women, both overseas and in Darwin, are of concern to all.
[*] Emma Coupland is currently conducting research with the Top End Women’s Legal Service in Darwin.
The author would like to thank Kate Halliday, coordinator of TEWLS, for her valuable assistance in preparing this brief.
 TEWLS has found the lack of available statistics has impeded research on this matter and can only rely on the Correctional Services’ Annual Report, a letter from the Attorney-General and a letter from the Department of Correctional Services.
 For the period between June 1996 and March 1999. Dollars Without Sense, p.2.
 TEWLS is unable to provide any statistics to support this speculation. It is merely a general observation from cases conducted over the last few years.
 Again, TEWLS is unable to provide specific figures on the number of women imprisoned for non-payment of fines for sleeping in a public place, other than those presented by the Attorney-General.
 TEWLS has discussed this speculation with lawyers from Aboriginal Justice Advocacy Committee, Northern Australian Aboriginal Legal Aid Service and Central Australian Aboriginal Legal Aid Service, all of whom support this view.