The road ahead: Driver’s licensing and the over-incarceration of Aboriginal peoples in Western Australia

Driving and fines: Legal and regulatory context in WA

The procedures for obtaining and maintaining driver’s licences and learner permits are outlined in the Road Traffic (Authorisation to Drive) Act 2008 (WA). Although data on imprisonment rates of Aboriginal people in WA is available, a gap in the available data is that licensing records in WA do not record ethnicity, including Aboriginality. ¹³

Driving unlicensed and driving disqualified are both considered criminal offences in WA under the Road Traffic Act 1974 (WA). Fines, periods of licence disqualification and terms of imprisonment can be issued in accordance with ss 49(1)(a) and (b) dependent on the circumstances of the offence. ¹⁴ Fines are measured in terms of $50 penalty units (PU) and can range between four PU ($200) and 80 PU ($4000). Periods of licence disqualification can be up to three years.

Importantly, in accordance with s 86 of the Sentencing Act 1995 (WA), the terms of imprisonment available as sentences under the Road Traffic Act must be at least six months in duration, therefore a person sentenced to a term of imprisonment for a driving offence is required to spend at least half a year in custody. Given that s 6(1) of the Sentencing Act codifies the principle of proportionality in sentencing in WA law, s 86 arguably mandates disproportionate and overly severe sentences considering the offences in question.

The Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) governs sanctions for fine default, which apply to fines issued for any offence, regardless of whether it is driving-related. Under s 42, a notice of intention to enforce may be issued and if the fine is not paid before the date specified in the notice, the Registrar may make a licence suspension order, an enforcement warrant, an order to attend for work and development (WDO) or a warrant of commitment (requiring the offender to spend time in prison). Most defaulters are only incarcerated for a short period of time before their debts are paid. ¹⁵ Nevertheless, such measures are not cost effective for the state. Outstanding fines can be paid off by fine defaulters at a rate of $250 per day if they spend time incarcerated to relieve their debts – yet it costs an average of $332 per day to keep an adult in prison. ¹⁶ In addition, the majority of fine defaulters serve short sentences, and the cost of housing short-stay prisoners is around $770 per day. ¹⁷ While incarcerating fine defaulters is intended to have a deterrent effect, there is evidence to suggest that the driving regulation and fines enforcement systems are not effective in reducing driving offences within Aboriginal communities. ¹⁸ Furthermore, specific features of the regulatory system may effectively render people more likely to become repeat offenders. For example, s 49(8) of the Road Traffic Act mandates that courts must issue nine-month periods of licence disqualification for those driving without a valid licence, cumulative on any other suspension. The long-term impact of cumulative suspensions can interfere with a person’s chances of re-obtaining their licence, sometimes permanently. ¹⁹ Further sustaining the cycle of disqualification and punishment in WA is the fact that licensing sanctions are available as consequences of fine default, regardless of whether the fines are incurred for driving offences.

While there are some reports that police may ‘look the other way’ when encountering drivers without licences who are driving safely, ²⁰ simultaneously, Australian police have been criticised for discriminating against, and disproportionately targeting Aboriginal people. ²¹ Anthony and Blagg have discussed how the 2007 Northern Territory Emergency Response, ostensibly to tackle child abuse, led to a dramatic increase in the criminalisation of Aboriginal people for driving offences. ²² They propose that the criminalisation of driving offences was the state’s way of disciplining and incorporating an uncolonised, or unevenly colonised, Indigenous domain into the Australian mainstream. ²³

The need to drive and barriers to licensing

It is important to note that Aboriginal people who come into conflict with driving regulations do not necessarily do so with the intent to disrespect the law. Aboriginal communities are bound by their own laws and cultural obligations, and fulfilling traditional obligations often takes precedence regardless of whether they happen to conflict with Western law. ²⁴ Aboriginal people may also drive unlicensed out of necessity, as there may be no transportation alternatives available to people living in remote or otherwise inaccessible areas. A high proportion of Aboriginal people live in rural and remote regions, as well as in the suburbs of major cities, which means that many Aboriginal people are dependent on access to private vehicles for travel. ²⁵ Potentially vast distances may stretch between Aboriginal people living in remote communities and their destinations, and the absence of public transport in some areas, ²⁶ combined with the financial barriers associated with taxis, ²⁷ makes driving the only reasonable option for some Aboriginal people who wish to travel outside their communities. Travel is necessary for a number of practical reasons including access to healthcare. The lack of adequate or appropriate health services within many remote communities means that Aboriginal people frequently have to travel long distances to access healthcare, ²⁸ which is particularly troubling considering that many Aboriginal people experience high levels of chronic illness. ²⁹

Cars and driving have other benefits for Aboriginal people – for example, they can also represent cultural capital in the community. Anthony and Blagg have argued that ‘[c]ars and roads on Indigenous spaces have created new cultural intersectionalities, new sites of contestation on the postcolonial frontier, rather than the successful completion of the colonial project.’ ³⁰ Driving has enabled the renewal of law ceremony for Aboriginal people by taking people to distant traditional law grounds; facilitated connection between remote communities for sports festivals and conducting family business; and facilitated access to hunting grounds and bush tucker. ³¹

Despite the need to drive, a combination of lack of access, prohibitive costs and culturally inappropriate services and testing procedures mean that drivers’ licences are often difficult to attain for Aboriginal people in remote communities. In New South Wales, the only Australian jurisdiction that currently collects statistics on Aboriginality in licensing, ³² less than half of eligible Aboriginal people held a licence as of 2017, and 38 per cent of those who did hold a licence had previously had it disqualified, suspended, or cancelled. ³³ Four barriers to licensing will be discussed here.

First, geography can pose a significant barrier to licensing for Aboriginal people living in regional or remote areas. Most government services in WA are concentrated in the City of Perth and its surrounding suburbs. ³⁴ In 2014–2015, the estimated population of Aboriginal people in WA was 87,200, with 22 per cent living in regional areas, and 40 per cent in remote and very remote areas. ³⁵ The WA Department of Transport has previously acknowledged that the majority of remote Aboriginal communities in the state do not have consistent or appropriate access to driver education and licensing. ³⁶ The fact that some licensing centres are based in police stations may mean that Aboriginal people are less likely to visit due to feelings of fear and mistrust. ³⁷ The ALRC’s report – Pathways to Justice – recommended that ‘State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations and community organisations to identify areas without services relevant to driver licensing and to provide those services, particularly in regional and remote communities.’ ³⁸

A second barrier is the difficulty of completing assessments and paperwork. Low rates of literacy within Aboriginal communities can interfere with preparing for the written learner’s test, completing forms and navigating the fines system. ³⁹ Low literacy levels can also make it difficult to complete logbooks to document compulsory driving hours. ⁴⁰ There is little flexibility for oral, pictorial, or outdoor testing, all of which could make the process more accessible to Aboriginal people. ⁴¹ In remote communities where Indigenous languages may be spoken, there is no access to interpreters during the assessments. ⁴² Furthermore, driving tests are urban-oriented and feature questions about traffic lights and roundabouts, for example, which are less relevant for test-takers in remote regions. ⁴³ Aboriginal people are less likely to have standardised proof of identity documentation that is required to access licensing services, typically a birth certificate. ⁴⁴

The third type of barrier to licensing is financial. Each step of the driver’s licensing process in WA has an associated cost, including the cost of the driving test and the cost of practising driving due to high fuel costs in remote communities. ⁴⁵ Furthermore, although all learner drivers must complete a requisite number of supervised hours in order to obtain a licence, financial limitations make it less likely that Aboriginal people will be able to afford private lessons, often meaning they must instead seek qualified drivers within their communities. However, some communities have few or no licensed drivers. ⁴⁶

The fourth and final type of barrier to licensing is cultural. The intergenerational normalisation of driving unlicensed within some Aboriginal communities has resulted in a lack of a perceived need to obtain a licence. ⁴⁷ Simultaneously, the lack of community ownership over driving regulation can contribute to the perception of the licensing scheme as an unwarranted imposition of Western law, ⁴⁸ in a context where Western law has been highly oppressive towards Aboriginal people. Additionally, Aboriginal people have reported experiences of racism when dealing with government agencies, or shame when engaging with the system in general. ⁴⁹

Two roads to incarceration

This section charts the two main roads to incarceration for people charged with driving offences. While these apply to all people charged with the offences in question, Aboriginal people are particularly vulnerable to the negative consequences of incarceration, and face additional barriers to obtaining a licence, as described above, that make them more likely to come into contact with the criminal justice system for this reason.

The road ahead

This section provides a comparative analysis of other relevant jurisdictions and proposes recommendations. These should be considered following consultation with Aboriginal communities in line with the Australian government’s obligations under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). ⁷⁰ Article 4 of UNDRIP provides that Indigenous self-determination includes the right to autonomy or self-government in matters relating to their internal and local affairs. Article 18 protects the right for Indigenous peoples to participate in decision-making in matters which would affect their rights, and Article 19 provides that states shall consult with Indigenous peoples in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

In terms of other relevant jurisdictions, Canada is one jurisdiction which provides some alternatives. Although Indigenous people are also overrepresented in the Canadian criminal justice system, it is at lower rates than in Australia. ⁷¹ Driving unlicensed and disqualified are not criminal offences in Canada; thus, there is no possibility of obtaining a criminal record for these offences.

Section 718.2 of the Canadian Criminal Code, which provides the principles that judges should take into consideration when sentencing offenders, includes a provision specifically intended to mitigate Indigenous overrepresentation in the criminal justice system. Section 718.2(e) of the Criminal Code requires the court to consider ‘all available sanctions or options other than imprisonment that are reasonable in the circumstances’ for all offenders, but ‘with particular attention to the circumstances of Aboriginal offenders.’ ⁷² The 1999 decision of the Supreme Court of Canada in R v Gladue ⁷³ acknowledged the systemic marginalisation of Indigenous peoples and their overrepresentation in the Canadian criminal justice system. It clarified how s 718.2(e) was to be interpreted in relation to Indigenous offenders, resulting in the implementation of the ‘Gladue report’, a pre-sentencing or bail hearing report provided to the court in order to highlight the relevance of a defendant’s Indigenous status and life circumstances with respect to their interaction with the criminal justice system. ⁷⁴ Nonetheless, Gladue has been criticised as being less effective than desired at reducing rates of over-incarceration. ⁷⁵

The High Court of Australia explicitly rejected the suggestion that ‘Gladue-like’ provisions could be implemented into Australian sentencing in the 2013 decision of Bugmy v The Queen, arguing that doing so would interfere with the principle of achieving individualised justice. ⁷⁶ Despite the High Court’s assertion, Gladue arguably coexists with individualised justice in Canada: s 718.2(a) of the Canadian Criminal Code provides that sentences should be adjusted to account for aggravating or mitigating circumstances relevant to the offender in question. It has been argued that Bugmy v The Queen represents a missed opportunity to grapple with the complex interrelationship between individualised justice and Indigenous circumstances in sentencing. ⁷⁷ The ALRC’s Pathways to Justice inquiry and report contained a related recommendation: ‘Sentencing legislation should provide that, when sentencing Aboriginal and Torres Strait Islander offenders, courts take into account unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples.’ ⁷⁸

Another positive aspect of the Canadian system is that while imprisonment is still an option for people who default on fines in Canada, the Supreme Court of Canada decision of R v Wu (2003) determined that genuine inability to pay a fine should not be grounds for imprisonment. ⁷⁹

However, a criticism of the approach to fines regulation in many common-law countries, including Australia and Canada, is that fines are based solely on the offence, and not according to the socioeconomic background of the offender. ⁸⁰ In contrast, the ‘day fine’ system operating in several European jurisdictions, such as Germany, assigns graduated fines that are tailored to an offender’s income and capacity to pay, ⁸¹ an approach advocated by Bentham, who was in fact better known for his writings on prisons – in particular the panopticon. ⁸² The day fine method of regulating fines is arguably more equitable: it is less punitive towards low-income offenders, and provides a more meaningful deterrent for higher-income offenders who would otherwise be able to effectively buy their way out of punishment. ⁸³ The Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) has been criticised for being disproportionately harsh on offenders from low socioeconomic backgrounds, including Aboriginal people in many cases. ⁸⁴ Therefore, implementing a version of the day fine approach might prove beneficial under these circumstances. It is unfortunate that day fines were considered and rejected in the 2013 statutory review of the Sentencing Act 1995 (WA), ⁸⁵ and have not enjoyed support from the ALRC, despite featuring as a solution in several submissions to the Pathways to Justice inquiry. ⁸⁶ Nonetheless, given the severity of Indigenous over-incarceration, the suitability of these Canadian and European options for WA law reform merit consideration.

There are three additional law reform options for consideration. First, consideration should be given to the abolition of the mandatory accumulation of licence suspensions provided in s 49(8) of the Road Traffic Act. Recalling that the need to drive for Aboriginal people in WA is significant, this measure would allow people to regain their licence as soon as a proportionate suspension has been served. It would also prevent the virtually insurmountable accumulation of suspensions that can potentially bar Aboriginal people from driving for months or years at a time.

Second, the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) should be reviewed and specifically, licence suspension as a penalty for fine default should be restricted or abolished, particularly when fines are incurred for offences unrelated to driving. The terms of WDOs within the Fines Act should be amended to allow fines to be paid off cumulatively as opposed to consecutively, thereby removing the ‘perverse incentive’ associated with incarceration for fine default. Explicit consideration for Aboriginal family, community and cultural obligations should be included in the terms of WDOs to ensure appropriate and feasible conditions are being set. Consideration of these unique obligations would allow the WDO process to become a more accessible option for Aboriginal people. Increased flexibility in WDO terms could alleviate the financial burden associated with fine defaults and help break the cycle of Aboriginal people facing lengthy cumulative license suspensions, defaulting on associated fines, and being incarcerated.

Third, the six-month mandatory minimum for terms of incarceration in s 86 of the Sentencing Act should be reviewed, and the possibility of abolishing this provision should be considered. Repeal of mandatory minimum sentences has successfully contributed to a justice reinvestment initiative across 24 US states to reduce their prison populations. ⁸⁷

There are also two ways in which existing laws and regulations could be used to alleviate the issues facing Aboriginal people in relation to driving offences and fines. The first is expanding the scope of the extraordinary driver’s licence, which allows people facing court-imposed licence disqualification to drive in limited circumstances, for example to access urgent medical treatment, to include Aboriginal customary obligations. ⁸⁸ The second way is to use the ‘time to pay’ order, which allows those with outstanding fines to confirm that they will be paid before a certain date, potentially through instalments. ⁸⁹ Though time to pay orders may be issued for the same reasons as extraordinary licences, they can also be issued if a licence suspension order threatens to ‘seriously hinder the alleged offender in performing family or personal responsibilities’. ⁹⁰

Conclusion

This research has found that WA’s current approach to regulating driver’s licensing, combined with systemic barriers to licensing experienced by Aboriginal communities, contributes to the over-incarceration of Aboriginal peoples in the state. In addition, there are serious concerns with respect to key pieces of legislation that regulate driving, licensing offences and fines in WA. The accumulation of licence suspensions under s 49(8) of the Road Traffic Act poses a significant obstacle for Aboriginal people who wish to regain their licence after having had it disqualified. Also, various provisions in the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) further entrench the cycle of incarceration and socioeconomic disadvantage within Aboriginal communities. ⁹¹ Finally, the six-month mandatory minimum for all terms of incarceration in WA, as codified in the Sentencing Act, results in unjust and disproportionate penalties being issued to Aboriginal people for minor driving offences.

Further research in this area could be supported by improved data collection, including recording of Aboriginality in driver’s licensing records in WA. Mindful of the ways in which research designs and procedures have been oppressive towards Aboriginal peoples throughout history, ⁹² the system of data collection that is implemented should be developed in a way that is sensitive to those concerns and to consent and transparency.

The lack of deterrent effects of current laws and associated lack of economic rationale for imprisonment given its significant financial cost have been presented in this article; a number of proposals for law reform have also been discussed. These and the relevant recommendations in the ALRC’s report Pathways to Justice require serious consideration. In doing so, it is crucial for the WA government to engage with Aboriginal communities to ensure that they are directly involved in the development and implementation of solutions, in line with Australia’s obligations regarding self-determination, consultation, representation and consent in Articles 4, 18 and 19 of UNDRIP. ⁹³ This will not only ensure that initiatives are sensitive to the unique needs of Aboriginal communities, but will also endeavour to place ownership of the law back into the hands of those most significantly impacted by its outcomes.