August 17, 2023 | Katie Wand
It has now been six months since Coroner McGregor handed down his scathing assessment of Victoria’s bail regime. In his findings into the passing of proud Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman Veronica Nelson, who passed away in custody while on remand for alleged offences related to shoplifting, the Coroner described Victoria’s bail regime as a ‘complete and unmitigated disaster’.
Since then, Veronica’s family has been supported by Victoria’s foremost legal, community and human rights organisations in their conclusion that Victoria’s bail laws must be reformed to prevent such an injustice from happening again.
On 15 August, Attorney-General Jaclyn Symes tabled new legislation that, if passed, will be a step toward reforming Victoria’s disastrous bail laws.
The new proposed legislation goes some way in reducing the number of women needlessly incarcerated on remand, including some welcomed measures such as the removal of the ‘double uplift’ provisions, the removal of some bail offences, and the acknowledgement that people who are unlikely to receive a prison sentence should not be remanded. The proposed legislation also places greater emphasis on the importance of a person’s Aboriginality in the context of bail decisions.
However, the Bill fails to remove certain clauses within the Bail Act which may still disproportionately impact women, and in particular First Nations women.
One key area of concern is the Bill’s retention of the ‘reverse onus’ test in a number of circumstances for adults. Furthermore, the Bill introduces an additional layer of complexity to the tests to be applied for bail, rather than simplifying what is already cumbersome and complex legislation.
We strongly believe that it is the role of the prosecution to justify why somebody’s right to liberty should be denied. Instead of the reverse onus test, there should be a single test focused on unacceptable risk to safety that the prosecution must prove.
On the contrary, the Bill retains the reverse onus test in a number of circumstances. As a result, the legislation does not go far enough.
We must adopt Poccum’s Law
We urge Parliament to introduce reforms that recognise the intersection between women’s experiences of social disadvantage, family violence, trauma and criminalisation, and to address the disproportionate damage caused by the Bail Act to the lives of women, and in particular, First Nations women.
We stand with the family of Veronica Nelson in calling for the adoption of Poccum’s Law in full, acknowledging the intersection between marginalisation, discrimination, family violence, mental illness, trauma and the remand of women, and addressing the disproportionate damage currently caused by the Bail Act.
Elena Pappas, CEO at the Law and Advocacy Centre for Women, and co-convener of Smart Justice for Women said:
"Smart Justice for Women welcomes the introduction of proposed legislation to amend Victoria's bail laws. In particular, we welcome the removal of the double uplift provisions that have propelled women into the highest thresholds for bail in relation to repeat, minor offending; the removal of certain bail offences; and strengthened considerations in relation to Aboriginal and Torres Strait Islander applicants.
“However, we remain concerned that retaining the reverse onus test for bail in many circumstances will continue to place an unfair onus on an accused person to establish why their liberty should not be denied, in a way that is incompatible with the Victorian Charter of Human Rights and Responsibilities Act. We are also concerned that these changes will not adequately address the complexity within the Act that acts as a barrier to decision-makers making bail decisions that are fair, balanced and just in all circumstances.
“We join VALS in calling for a statutory review of the Bill 12 months after it is enacted; further amendments to remove the reverse onus provisions; and a quicker enactment of the bill. We also wish to acknowledge the tireless advocacy of Veronica Nelson's family in calling for bail reform."
Louisa Gibbs, CEO at the Federation of Community Legal Centres, and co-convener of Smart Justice for Women said:
“Keeping women on remand without good reason creates suffering and actually reinforces offending behaviours.
“We support the Government's focus on bail reform, and encourage our politicians to implement Poccum's Law in full to break intergenerational cycles of poverty, marginalisation, and criminalisation. We hope that the Government shares our view that today’s legislation, if passed, should be just the first step towards making our bail laws safe, fair, and fit-for-purpose.”
Background
Sweeping changes in 2018 to the Bail Act 1977 (Vic) (the Bail Act) including the ‘reverse onus’ provisions resulted in a sharp increase in the number of women on remand in Victoria’s prisons. These women have not yet faced trial. Some will not be found guilty at all, and a significant number will not be sentenced to a term of imprisonment. Most women on remand have experienced trauma prior to entering prison. Between 70 and 90 per cent of women on remand have experienced violence or abuse.
Under the ‘reverse onus’ provisions of the Bail Act, the onus is placed on the accused to convince the Court that they should not be imprisoned. Depending on the circumstances, certain hurdles then apply that require the accused person to show ‘compelling reasons’ or ‘exceptional circumstances,’ in addition to addressing the question of risk.
Women who pose no risk to the community are denied bail every day in Victoria due to factors that directly correlate with marginalisation and poverty. For example, women are denied bail if they are homeless or have unstable housing, and many victim-survivors of family violence are remanded after being mis-identified as the perpetrator. There is a high prevalence of mental ill-health and addiction among women entering prison on remand.
Incarceration on remand separates women from their housing, community, and most devastatingly, their children, increasing the likelihood of their children entering the child protection and out of home care systems. Even a short time spent in prison results in the removal of all protective supports, often when women are in greatest need, and disrupts access to opportunities for recovery and rehabilitation that shield the accused from further criminalisation in the future.
Smart Justice for Women’s full position on bail reform is supported by our policy platform, available here.
Smart Justice for Women
Smart Justice for Women is a coalition of leading legal, academic and community service organisations who are passionately working to reduce the criminalisation of women in Victoria. Smart Justice for Women is co-chaired by the Federation of Community Legal Centres and the Law and Advocacy Centre for Women.
For media inquiries please contact Katie Wand at [email protected]
