Bail Amendment (Reducing Pre-trial Imprisonment of Women, Aboriginal, and Vulnerable Persons) Bill 2021
That the bill be now read a second time.
Back when the Royal Commission into Aboriginal Deaths in Custody went to work, First Nations people made up 3 per cent of Victoria’s prison population, a rate of imprisonment at around 900 per 100 000 population.
Thirty years later, by the end of the year 2019, just prior to the pandemic, First Nations prisoners made up over 10 per cent of the total prison population in Victoria, at a staggering rate of 2220 imprisoned per 100 000.
What is more, the sharpest rise in Aboriginal custody, and the greatest ever gap between the incarceration levels of Aboriginal and non-Aboriginal Victorians, has occurred in recent years under this government.
How could this happen in our time?
Social and economic disadvantage caused by dispossession, racism, and loss of culture are of course ongoing, but they can’t account for the record rises in Aboriginal imprisonment in recent years.
No, this is directly the result of recent Victorian government justice policy.
Specifically, it is the reforms to the Bail Act 1977 over the last decade that have led to almost all of the record rises in imprisonment, and disproportionately those from the most vulnerable groups.
By way of example, there were almost 2000 more prisoners in 2019 compared to 2014, and 92 per cent of these additional prisoners were unsentenced on remand.
While we were told that bail reforms would improve public safety by getting tougher on dangerous criminals, the data tells a different story, because the proportion of prisoners held unsentenced on remand is far more closely associated with relative levels of social, cultural and economic disadvantage than the respective seriousness of the alleged offences.
Most would be shocked to learn that the rates of imprisonment on remand for Aboriginal Victorians, and also women and children, is much higher than for non-Aboriginal men responsible for the most serious violent crime.
As well as being discriminatory and expensive, the consequences of higher pre-trial detention of people from vulnerable communities is often intergenerational and criminogenic, entrenching disadvantage and crime for decades.
The most tragic consequence is that Aboriginal Victorians continue to die in custody when on remand for offences as minor as shoplifting that almost never result in custodial sentences.
The Bail Amendment (Reducing Pre-trial Imprisonment of Women, Aboriginal, and Vulnerable Persons) Bill 2021 proposes to wind back the failed bail reforms of the last decade that have also caused exponential growth in the capital and operational costs of Victoria’s prison system, considerable declines in prison performance, and rising reoffending rates for both children and adults, without any evidence that they have enhanced community safety.
Instead the bill will implement bail reform consistent with the recommendations of the Victorian Law Reform Commission that began in 2010, but was abandoned after Victoria’s justice policy became politicised.
In doing so the bill proposes neither a tougher nor a weaker bail system, but a smarter system that will provide a simpler and more readily understood risk assessment framework for bail decisions to be made.
I turn now to the …
Bill summary and structure
The guiding principles of the Bail Act state the act should have regard to maximising the safety of the community and the presumption of innocence and the right to liberty.
Put simply, this means a person charged with an offence must be presumed innocent and so not be detained in custody, but be released on bail until their trial, unless there is good reason to believe that they may pose a risk to public safety while on bail, in which case they should be held on remand.
The Bail Act recognises this by way of applying the unacceptable risk test to determine whether a person receives bail.
The unacceptable risk test means an accused will be granted bail unless a prosecutor can establish the accused is an unacceptable risk to public safety, interfering with witnesses, committing an offence, or failing to appear at their trial.
However, the Bail Act also contains additional tests for those accused of some offences, where the exceptional circumstances or show compelling reason tests may apply.
These are known as reverse onus tests, because they require that bail be refused unless an accused person can successfully argue they have an exceptional circumstance or a compelling reason for bail.
Recent bail reforms have focused not so much on raising the reverse onus threshold for bail for those charged with serious offences, but on expanding the total number of offences that require a reverse onus test.
It is a quantitative not a qualitative approach to determining bail that has led to far more people being held on remand irrespective of whether or not their imprisonment makes any sense.
In particular, repeat low-level offending, including minor breaches of bail conditions, which are most frequently the result of poverty, homelessness, poor mental health and family violence, is being uplifted into requiring a show compelling reason test, or exceptional circumstances test, the same threshold for bail as the most serious offences, such as murder, treason and serious sexual offences.
This has led to far greater numbers of vulnerable people, who in reality pose no threat to public safety, being unable to receive bail and so held in prison on remand for charges that are unlikely to result in a custodial sentence even if they are proven.
In practice, the very presence of social, cultural or economic disadvantage makes it more difficult for an accused to meet a reverse onus threshold in court, regardless of how minor their offending—for example, when an accused woman lacks access to stable housing because of family violence.
This expansion of the reverse onus tests to capture low-level offences explains why the incarceration of vulnerable groups such as women and Aboriginal Victorians has risen in recent years at a much higher rate than non-Aboriginal men.
Given that all accused always have to meet the unacceptable risk test for bail anyway, it is not logically apparent why the added complexity of reverse onus tests are required at all in regard to improving public safety.
This was the conclusion reached by the Victorian Law Reform Commission (VLRC) in the most comprehensive review of the Bail Act, released in 2007. The VLRC characterised the reverse onus tests as ‘illogical’ and recommended they be repealed in favour of a single unacceptable risk test, a system also favoured by most key legal stakeholders.
Repeal of the reverse onus tests
Therefore, the bill repeals the two reverse onus tests, the exceptional circumstances and show compelling reason tests, so that granting bail is based on a simplified and focused single test of unacceptable risk, consistent with the recommendation of the VLRC.
The unacceptable risk test will operate in the same way as currently under the act—that is, a bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that if the accused is released on bail there is an unacceptable risk they would: endanger the safety or welfare of any person; commit an offence; interfere with a witness or obstruct justice; or fail to surrender into custody.
The bill maintains that the evidentiary burden of proof must always be on the prosecution, consistent with our established system of criminal law.
A single unacceptable risk test will ensure that bail will not be denied, and a person remanded into custody, for the sole reason that an accused is unable to effectively present an argument for their release that may be due to or exacerbated because of factors inherent to their disadvantage, where such factors are irrelevant to the issue of unacceptable risk to public safety.
Additional surrounding circumstances to be considered in determining bail
The bill also expands the non-exhaustive list of factors in section 3AAA of the Bail Act, known as surrounding circumstances, that are to be considered by bail decision makers in the unacceptable risk test.
The bill adds consideration of whether the alleged offence is classified as a schedule 1 or a schedule 2 offence. This addition will provide bail decision makers with more guidance as to the seriousness of an accused’s offence when determining whether there is an unacceptable risk, because schedule 1 and 2 offences are considered as serious offences in the context of determining bail.
This will serve to provide a more logical means for bail decision makers to be reminded of the seriousness of an alleged offence, and by extension potentially applying a more rigorous approach to the question of bail than undertaking the current reverse onus tests for schedule 1 and 2 offences currently.
The bill also adds other additional factors that may be considered by bail decision makers in determining bail, including: any parental responsibilities the accused may have in relation to a child; the likelihood of a custodial sentence for the accused, should they be found guilty of the offence they are charged with; and consideration of any relevant human rights under the Victorian Charter of Human Rights and Responsibilities.
While the surrounding circumstances listed are a non-exhaustive list provided only as guidance to bail decisions makers, inclusion of these additional factors may provide bail decision makers with greater scope to ensure consideration of bail does not occur in isolation from the context of the broader welfare of our society, including the long-term criminogenic and intergenerational effects of unnecessary pre-trial detention for low-level offences.
The bill also contains other technical amendments to provisions in the Bail Act relating to where a terrorism risk is alleged, when only a court can determine bail, and when a court must record reasons for granting bail.
These amendments are required because the bill repeals the reverse onus tests, and they largely preserve the existing procedures in these circumstances, notwithstanding under the bill no reverse onus tests will occur, and the burden of proof will always remain with the prosecution.
As a direct result of recent changes to bail laws, the disproportionate incarceration of Aboriginal Victorians over the past decade has accelerated to the highest levels in recorded history and moved the state even further away from its stated goal of ending justice disadvantage for Aboriginal Victorians compared to non-Aboriginal Victorians.
Higher rates of Aboriginal Victorians held on remand without cause further compounds the loss of culture, family and purpose for a growing number of Aboriginal people, entrenching their social and economic disadvantage, and their chances of dying in custody, throughout their lifetimes.
Stopping this trend requires reforms to the Bail Act as a priority.
There can be no more excuses or distractions. This is what the Victorian Aboriginal Legal Service continues to tell us. In fact, it is what the royal commission recommended some 30 years ago.
But it is not only this, Victoria’s prison system currently holds significantly higher proportions of women and children unsentenced and in pretrial detention on remand, compared to the general prison population.
This, despite the fact that these groups are also less likely to be charged with serious offences, and more likely to eventually be released from custody on time served, or a non-custodial sentence.
We have repurposed the prison system as a temporary dumping ground for the most socially disadvantaged, criminalising their disadvantage and poverty rather than connecting them with less expensive and more effective health and social programs that will actually address their low-level criminal offending.
Already billions of dollars have been wasted in Victoria expanding prisons so low-level offenders can cycle through the system for short periods on remand, money that instead should have been spent on housing, hospitals, mental health support and education.
Of course, this also means our prison system can’t actually do what it is designed to do—that is, holding the most serious offenders and seeking to rehabilitate those who are to be released so they don’t reoffend.
It is no coincidence that reoffending rates have continued to rise at the same time as the recent bail reforms.
I have been encouraged hearing some comments from all sides of politics that justice policy simply can’t continue on this failing trajectory.
Because ultimately, it doesn’t matter if you are more concerned about the fiscal implications, the discrimination, the reoffending rate, or human rights in supporting bail reform. Evidence-based justice policy requires multi-partisan support.
Therefore, as I said when I introduced the bill to raise the age of criminal responsibility, the question is not if these reforms get implemented, but when.
The COVID pandemic has meant that we have an opportunity to lock in some of the reduced imprisonment of women and Aboriginal Victorians, to permanently redirect these people to housing and social support.
Or we can wait until there is even more money wasted, more reoffending and victims, more communities destroyed, and more preventable Aboriginal deaths on remand, and then make these changes.
The Greens have introduced this bill today because we must not wait.
I commend this bill to the house.