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Precedent (Australian Lawyers Alliance) |
TOWARDS ENDING OVER-IMPRISONMENT
ADDRESSING THE IMPACT OF BAIL LAWS ON WOMEN IN VICTORIA
By Monique Hurley
‘Victoria has some of Australia’s most onerous and dangerous bail laws, which regularly fail to uphold the most basic tenets of a fair and equal justice system. They are unfairly removing women from their families, and funnelling them into prisons to be warehoused on remand before they have been sentenced for a crime.’[1]
Victoria’s bail laws are contributing to the growth of Victoria’s unsentenced prison population, with 44 per cent of people in prison unsentenced at the end of March 2022, compared with 20 per cent 10 years ago, in March 2012. Notably, over half (55 per cent) of women in prison were unsentenced at that point in time.[2]
The impact of the bail laws is particularly acute for women, who are being denied access to bail and punished by pre-trial imprisonment, ‘not because they pose a risk to the community, but because they themselves are at risk’[3] of intersecting forms of disadvantage. These include homelessness, poverty, family violence, mental illness and addiction – factors that are increasingly being criminalised and contributing to women being imprisoned across the country.
This article explains the reforms to Victoria’s bail laws that have significantly contributed to the growth in the unsentenced prison population, highlights the gendered impacts of those reforms, and shows how they are part of a national trend towards overly punitive bail laws. While ‘reforms’ implies an aim to improve the law, this article highlights the dangerous and discriminatory impact of the changes made to the state’s bail laws. It also makes the case for the Victorian Government to end the needless imprisonment of women by setting the right to liberty as the default position.
HOW DID WE GET HERE?
Changes made by the Victorian Government to the Bail Act 1977 (Vic) (Act) in 2018 were prompted by the Coghlan Review; this was commissioned following the Bourke Street tragedy, where six people were killed and at least 30 injured by James Gargasoulas a few days after he was released on bail.
The reforms make it harder for people to get bail when applying for consecutive bails, and apply reverse-onus provisions to a broader range of offences. Under the reverse-onus provisions of ss4(A) and 4(C), ‘[t]he accused bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances’[4] or of showing that ‘a compelling reason exists that justifies the grant of bail’.[5] If a person is unable to meet the applicable legal test, then ‘the bail decision maker must refuse bail’.[6]
The ‘compelling reasons’ test is more difficult to meet than the previous ‘show cause’ test, and the ‘exceptional circumstances’ test is more difficult again. The 2018 reforms have increasingly imposed on the people charged with an offence the burden of proof to show why they should be released on bail, and have significantly widened the net of offending cast by the reverse-onus provisions.
Whereas the ‘exceptional circumstances’ test previously applied only to the most serious Schedule 1 offences – like murder and treason – the ‘exceptional circumstances’ test now applies to people accused of committing a Schedule 2 offence while on bail for a previous Schedule 1 or 2 offence. This means that people who have been granted bail and are accused of engaging in repeat wrongdoing (like shoplifting, which is an indictable offence) or procedural justice offences (like breaches of bail that amount to offences against the Act) have their matters ‘uplifted’ through the reverse-onus provisions and are being held to the same standard as people accused of the most violent and dangerous crimes.
This, in combination with amendments made to Victoria’s bail laws in 2013 in the Bail Amendment Act 2013 (Vic), which saw the introduction of two new bail-related offences – contravening a conduct condition of bail and committing an indictable offence while on bail – has significantly impacted women’s remand rates. Half the women who entered prison on remand in 2018 were charged with one of the two new bail offences introduced in 2013.[7]
GENDERED IMPACTS
The recent Inquiry by the Victorian Parliament’s Legal and Social Issues Committee into Victoria’s criminal justice system (Inquiry) found that ‘women, particularly Aboriginal women and women experiencing poverty, are disproportionately remanded under current bail legislation’.[8]
This is confirmed by monthly data published by Corrections Victoria, which paints an alarming picture. The most recent data available for March 2022 shows that 55 per cent of women in prison are unsentenced.[9] Throughout 2021, the proportion of unsentenced women in prison fluctuated between 45 and 56 per cent of the total number.[10] In the months of April, May, June, July and August, over half the women in Victorian prisons were unsentenced for the alleged crime for which they had been arrested.[11]
Data that tracks the number of unsentenced women on entry to prison paints an even more disturbing picture. Throughout 2021, between 86 and 92 per cent of women (nine out of every ten) were unsentenced on reception to prison.[12]
The current system is resulting in more women being denied bail, not because they pose a risk to the community, but because they themselves are at risk. A ‘constellation of circumstances’, as referred to in a 2020 report,[13] contributes to their criminalisation:
‘[W]omen’s various and interlinked experiences of disadvantage heighten their vulnerability to criminalisation and remand. Lawyers noted that criminalised women have generally been experiencing a range of hardships prior to being remanded, including homelessness, poverty, family violence, untreated physical and mental health problems, and drug and alcohol addiction ... these issues create ... “a level of chaos in their lives”.’[14]
These intersecting forms of disadvantage make it harder for women to put forward a case in favour of bail, which means time behind bars is often the default setting.
One of the biggest barriers to women accessing bail is housing, with many women denied bail because they ‘don’t have an address: they’re living in their car, couch-surfing, or unable to return home because of family violence.’[15]
For women experiencing family violence, the disadvantage is compounded because the Victorian bail laws punish them rather than help to address their circumstances. Between 2012 and 2017, there was a 630 per cent increase in the number of women facing breach of order charges.[16]
When women are misidentified as perpetrators in Family Violence Intervention Order matters and subsequently charged with breaches of orders, they can quickly be exposed to escalating bail thresholds. In a review of its case files, the Women’s Legal Service in Victoria confirmed that this is occurring, finding that almost 60 per cent of its clients who were named as the respondents to police intervention orders had been incorrectly identified as the perpetrator; further, of 55 women named as respondents to Police Family Violence Intervention Orders between January and May 2018, 32 were misidentified as perpetrators of violence.[17]
This is a trend across Australia, with ‘mounting evidence’ suggesting that misidentification ‘is alarmingly common and derailing the lives of potentially thousands of women around the country every year’.[18] This is particularly the case for Aboriginal and Torres Strait Islander women, whose rates of misidentification are ‘likely to be higher’ than for non-Indigenous women.[19]
Regardless of its length, a period of imprisonment can be disruptive and traumatising.[20] Even a short time in prison can have life-altering impacts. Women can be subjected to prison practices inconsistent with international human rights standards – like routine strip searching and prolonged solitary confinement – which undermine any rehabilitative purpose that prison might serve.[21]
Women imprisoned across the country risk losing their children, as well as their homes, jobs and connection to the community. Imprisonment means many of these positive life factors, which act as protective forces against poverty and abuse, are removed, and on release women are often forced to start over – on their own. As Australian research shows, ‘there is a dearth of support for remandees upon release’.[22]
Rather than being afforded the opportunity to fight their cases from a position of freedom, women are often forced to deal with their legal matters from prison cells while enduring the harm that is an inevitable consequence of being imprisoned. An increase in ‘time served’ prison sentences in Victoria also raises concerns, as noted by the Sentencing Advisory Council, about whether the increasing likelihood of receiving a time served prison sentence may be inappropriately encouraging some people on remand to plead guilty in the hope of being released earlier than if they proceeded to trial.[23]
IMPRISONMENT CRISIS
Successive Victorian governments have built more prisons and created an imprisonment crisis, with the bail laws driving up the number of people, particularly unsentenced people, in prison. Ten years ago, 20 per cent of men and 24 per cent of women in prison were unsentenced compared to the figures for March 2021, when 43 per cent of men and 55 per cent of women were unsentenced.[24]
At 31 March 2022, there were 6,687 people in prison in Victoria, in contrast with 4,843 at 31 March 2012. During this period the number of unsentenced people in prison rose from 984 to 2,939.
The Inquiry made 100 recommendations to overhaul Victoria’s criminal legal system, in recognition of the fact that the current punitive approach is ‘not reducing crime or improving community safety’.[25] This is consistent with a growing body of evidence, including a landmark American study showing that ‘incarceration cannot be justified on the grounds it affords public safety by decreasing recidivism’.[26]
Due to the ongoing impacts of colonisation and the systemic racism and discriminatory policing they experience, Aboriginal and Torres Strait Islander people are over-represented in imprisonment and remand rates across the country.[27]
In Victoria, 44 per cent of Aboriginal and Torres Strait Islander people in prison were on remand in June 2020 (up from 20 per cent in 2010), compared with 35 per cent of the general prison population. Aboriginal and Torres Strait Islander women are further overrepresented, with approximately 90 per cent unsentenced on reception to prison.[28]
Over 500 Aboriginal and Torres Strait Islander people have died in custody since the Royal Commission into Aboriginal Deaths in Custody in 1991. This includes proud Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman Veronica Marie Nelson, who died in custody 3 days after being arrested and refused bail for shoplifting-related offences.[29] Ms Nelson died alone in a prison cell in January 2021, after crying out for medical assistance a number of times.[30]
Rather than revising the bail laws that are driving up the number of unsentenced women being funnelled into the prison system, in March 2021 the Victorian Government announced the expansion of the Dame Phyllis Frost Centre – the maximum-security women’s prison where Ms Nelson died – by 106 new cells, at a cost of $188.9 million. The Dame Phyllis Frost Centre currently has capacity to imprison 604 women, yet recent data shows that a far lower number of women, 318, were detained there in March 2022.[31]
NATIONAL TREND TOWARDS OVERLY PUNITIVE BAIL LAWS
The Victorian Government’s bail reforms – enacted swiftly in response to a specific incident of horrific violence – echo a national pattern of ‘an increasingly politicised environment around bail reform’, especially the use of the bail regime ‘to send a “tough on crime” message’.[32]
While bail laws in each Australian jurisdiction take different shape, there has been a distinct, significant shift from viewing bail decision-making as a procedural mechanism for ensuring attendance at trial to viewing refusal of bail as a crime prevention tool.[33]
This trend has, in turn, contributed to an increase in the number of people in prisons across Australia, with recent data from the Australian Bureau of Statistics showing that the number in prison on remand increased by 16 per cent between 30 June 2020 and 30 June 2021; at the same time the number of sentenced people in prison decreased by 1 per cent.[34]
While we imagine that the principle of ‘innocent until proven guilty’ holds true for our legal system, so often this is not the case. Legislative changes across Australia in recent years have signalled a shift away from a presumption in favour of bail towards:
‘a presumption against bail which requires the applicant to “show cause” why he or she should be given bail, rather than a police officer or prosecutor having to offer persuasive reasons why bail should be denied.’[35]
The movement towards refusing bail as a crime prevention tool has largely been in response to particularly high-profile incidents where an offence has been committed by a person on bail. As discussed above, Victoria’s bail reform was prompted by the Bourke Street tragedy. It is important to note, however, that ‘[g]ood policy should be informed by the broad range of cases that come before our justice system, not one particular case or type of case’.[36]
Yet we are at a point where bail laws are increasingly becoming unhinged from the bedrock principles that should underpin our legal system. Bail decision-making increasingly represents ‘a moment where accusation, guilt and punishment are conflated’.[37] This seriously undermines the right to be presumed innocent until proven guilty, and in Victoria the wide net of alleged offending captured by the reverse-onus provisions results in denial of the right to liberty for too many people who do not pose any real risk to community safety. This was confirmed by the Inquiry, which found that Victoria’s criminal justice system does not appropriately or fairly balance ‘the maintenance of community safety with the presumption of innocence for people accused of an offence’.[38]
LONG OVERDUE NEED FOR CHANGE
Long overdue change is needed to address the escalating number of people being warehoused in prison before they have been sentenced for the alleged offending for which they were arrested. Instead of building bigger prisons, governments across Australia should be both reducing the number of people being forced into prisons and supporting people and communities by investing in housing and social services.
In Victoria, the Government must end the needless imprisonment of women by listening to the calls of Aboriginal and Torres Strait Islander, legal, and human rights organisations and repeal the reverse-onus provisions in the Act. A presumption in favour of bail for all offences should be created, with the onus on the prosecution to demonstrate that bail should not be granted only if there is specific and immediate risk to the physical safety of another person, or the person applying for bail poses a demonstrable flight risk.[39]
Monique Hurley is a Senior Lawyer at the Human Rights Law Centre. EMAIL monique.hurley@hrlc.org.au.
[1] Meena Singh, Legal Director, Human Rights Law Centre, quoted in Human Rights Law Centre, Victoria’s bail laws are broken and need to be fixed (18 May 2021) (HRLC)
<https://www.hrlc.org.au/news/2021/5/18/victorias-bail-laws-are-broken-and-need-to-be-fixed#:~:text=%E2%80%9CVictoria%20has%20some%20of%20Australia's,been%20sentenced%20for%20a%20crime>.
[2] Department of Justice and Community Safety – Corrections Victoria, Monthly Time Series Prisoner and Offender Data, March 2022 (Corrections Victoria), ‘Table 1 – (Prisoner numbers)’ <https://www.corrections.vic.gov.au/monthly-time-series-prisoner-and-offender-data>.
[3] HRLC, above note 1.
[4] Bail Act 1977 (Vic), s4A(2).
[6] Ibid.
[7] Crime Statistics Agency, Characteristics and offending of women in prison in Victoria, 2012–2018 (November 2019) <https://www.crimestatistics.vic.gov.au/characteristics-and-offending-of-women-in-prison-in-victoria-2012-2018>.
[8] Parliament of Victoria, Legislative Council, Legal and Social Issues Committee, Inquiry into Victoria’s Criminal Justice System (March 2022), 449.
[9] Corrections Victoria, above note 2, Table 1.
[10] Ibid.
[11] Ibid.
[12] Corrections Victoria, above note 2, ‘Table 2 – Prisoner receptions’.
[13] E Russell, B Carlton, D Tyson, H Zhou, M Pearce and J Faulkner, A Constellation of Circumstances: The Drivers of Women’s Increasing Rates of Remand in Victoria (Report, July 2020), Fitzroy Legal Service and the La Trobe Centre for Health, Law and Society, Melbourne, 6.
[14] Ibid, 19.
[15] E Russell, ‘Number of women on remand in Victoria soars due to outdated bail laws’, The Conversation (9 August 2021) <theconversation.com/number-of-women-on-remand-in-victoria-soars-due-to-outdated-bail-laws-165301>.
[16] Corrections Victoria, Women in the Victorian Prison System (Report, January 2019), 8.
[17] M Ulbrick and M Jago, ‘“Officer she’s psychotic and I need protection”: Police misidentification of the “primary aggressor” in family violence incidents in Victoria’, Women’s Legal Service Victoria (Policy paper, July 2018), 1 <https://womenslegal.org.au/files/file/WLSV%20Policy%20Brief%201%20MisID%20July%202018.pdf>.
[19] Djirra, Djirra’s Submission to the Parliamentary Inquiry into Family, Domestic and Sexual Violence (Submission, July 2020), 28–9.
[20] Russell et al, above note 13.
[21] See for example HRLC, Total Control: Ending the routine strip searching of women in Victoria’s prisons (Report, 2017) <https://www.hrlc.org.au/reports/2017/12/5/report-total-control-ending-the-routine-strip-searching-of-women-in-victorias-prisons>; Office of the Inspector of Custodial Services, Western Australian Government, Strip searching practices in Western Australian prisons (Report, March 2019) <https://www.oics.wa.gov.au/wp-content/uploads/2019/04/Strip-Searches-Review.pdf>; Victorian Ombudsman, Implementing OPCAT in Victoria: report and inspection of the Dame Phyllis Frost Centre (Report, November 2017); T Walsh, H Blaber, C Smith, L Cornwell and K Blake, Legal perspectives on solitary confinement in Queensland, University of Queensland and Prisoners Legal Service, 2020 <https://law.uq.edu.au/files/55114/Solitary-Confinement-Report.pdf>.
[22] Russell et al, above note 13, 19.
[23] Victoria Sentencing Advisory Council, Time Served Prison Sentences in Victoria (Report, February 2020), 13.
[24] Corrections Victoria, above note 2, Table 1.
[25] Parliament of Victoria, above note 8, 641.
[26] See D Petrich, T Pratt, C Jonson and F Cullen, ‘Custodial Sanctions and Reoffending: A Meta-Analytic Review’, Crime and Justice: A Review of Research, Vol. 50, No. 1, 2021, 353–424, 353 <https://www.journals.uchicago.edu/doi/abs/10.1086/715100>. See also V Law, ‘Prisons Make Us Safer’: And 20 Other Myths about Mass Incarceration, Beacon Press, Boston, 2021.
[27] See L Bartels, ‘The growth in remand and its impact on Indigenous over-representation in the criminal justice system’ (Research Brief, 24 May 2019), Indigenous Justice Clearing House.
[28] Corrections Victoria, Profile of people in prison, 2020 <https://files.corrections.vic.gov.au/2021-06/Infograpic_Profile_of_people_in_prison2020.pdf?VersionId=sU1fMoYZEAM.wuZEj1jUpoB1wPKjs7BT>; Corrections Victoria, Profile of Aboriginal people in prison, 2020; Corrections Victoria, Annual Prison Statistical Profile 2019–2020, (2021) State Government of Victoria, Table 2.3: Aboriginal and Torres Strait Islander Prisoner Receptions, By Sex and Legal Status on Reception: Annual Prisoner Statistical Profile 2009-10 to 2019-20 <https://www.corrections.vic.gov.au/annual-prisoner-statistical-profile-2009-10-to-2019-20>.
[31] Corrections Victoria, ‘Table 1.09 – Number of prisoners by prison location’, Monthly Prisoner and Offender Statistics 2021–22 (March 2022) <https://www.corrections.vic.gov.au/monthly-prisoner-and-offender-statistics>.
[32] L Bartels, K Gelb, C Spiranovic, R Sarre and S Dodd, ‘Bail, Risk and Law Reform: A Review of Bail Legislation across Australia’, Criminal Law Journal, Vol. 42, No. 2, 2018, 91–107.
[33] D Brown, ‘Looking Behind the Increase in Custodial Remand’, International Journal for Crime, Justice and Social Democracy, Vol. 2, No. 2, 2013, 80–99, 85.
[35] Bartels et al, above note 32, 105.
[36] Victorian Law Reform Commission, Review of the Bail Act: Final Report (Report, 2007), 21.
[37] D Brown and J Quilter, ‘Speaking Too Soon: The Sabotage of Bail Reform in New South Wales’, International Journal for Crime, Justice and Social Democracy, Vol. 3, No. 3, 2014, 73–97.
[38] Parliament of Victoria, above note 8, 459.
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