In 2018 the Victorian Parliament passed legislation to tighten Victoria’s bail laws, making them some of the world’s most stringent. These changes were in response to the shocking and tragic January 2017 Bourke Street incident, where a violent and unwell man on bail was responsible for a horrendous event in our city’s centre that shocked the community.
The new laws made it far more difficult for people to be granted bail. While that push was understandable in the context, the laws covered a number of offences, including low level offences, within this framework. This meant that people who may have shoplifted, or not attended court on a return date because they were homeless and didn’t know about it, were likely to be remanded and denied bail. Many offences were elevated to a higher threshold test where the individual defendant had to establish to the court compelling reasons or exceptional reasons why bail should be granted.
As a result, people whose charges would never have resulted in any jail time if convicted, were being remanded for weeks and months prior to their case being heard by a court.
Vulnerable members of community, including a disproportionate number of our indigenous population, suffered most as a result of the changes to the bail laws, which Simon McGregor, the Coroner in the tragic Veronica Nelson coronial inquest, described as an “unmitigated disaster”.
Legislative change which flows quickly in response to tragic events is rarely good law, and we are seeing the effect of that every single day in Victoria’s prisons.
In my role as Law Institute of Victoria (LIV) President and Director of First Step Legal, I am advocating for reform to Victoria’s bail laws.
The changes to our bail laws in 2018 have resulted in more vulnerable and disadvantaged members of our community being remanded in custody. These are people who have not been found guilty or convicted of any offence.
Currently, 44% of Victoria’s prison population are unsentenced. Prior to 2015, less than 20% of the prison population comprised individuals held on remand, so the 2018 reforms have had a significant impact on the changes in the demographic of the prisoner population.
Prison should be a recourse of last resort and reserved only for those members of the community who put themselves and others at risk. We also need to appreciate the cascading effect of imprisonment and how it disrupts work, housing, connection with family life and relationships, as well as continued engagement with supports and treatment.
In many instances, people are being held on remand for longer than they would have spent in prison had they had a sentence imposed.
The LIV, together with a number of other legal and justice focussed organisations, have been advocating to remove the reverse-onus on the defendant, so that there is a presumption in favour of bail unless the prosecution can show that granting bail would cause an unacceptable risk. Such risk includes an unacceptable risk that the person will commit further offending, interfere with witnesses, pose a risk to the safety of another person or present a flight risk so that they won’t answer their charges on a future date.
These reforms are needed now more than ever, to prevent ongoing injustices towards our most vulnerable members of the community and avoidable deaths in custody such as Veronica Nelson, a proud aboriginal woman, who at the time of her death had been in Dame Phyllis Frost Prison Centre for three days on remand after being arrested on suspicion of shoplifting. She was imprisoned after appearing in court, without a lawyer and was refused bail. It was unlikely she would have been sentenced to prison if she had been convicted of the offences for which she was arrested.
Director First Step Legal
President Law Institute of Victoria