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Opinion: The cruel politics of bail

Opinion: The cruel politics of bail

By Isabelle Skaburskis



2018 reforms in the name of community safety have disproportionately impacted women and Aboriginal people.

There is anger among defence lawyers and others at the 2018 reforms to the Bail Act 1977 and their impact on clients. The injustices of the reverse onus provisions in the Bail Act are widely apparent, but particularly troubling is how they affect women. 

The 2018 reforms were designed to ensure more people would be remanded in custody before sentence. This was achieved by expanding the number of offences for which a defendant loses their right to bail. The logic behind the reforms was that higher rates of pre-sentence imprisonment would increase community safety. 

The bail reforms have disproportionately impacted women and Aboriginal people. 

General prison populations in Victoria almost doubled between 2010 and 2019, from 4537 to 8101. The increase in female prisoners almost tripled. At 30 June 2019, 47 per cent of women in prison were unsentenced. In 2012, 63 per cent of women on remand had a right to bail; by 2018, only 21 per cent. 

There is no evidence that crime rates have dropped or that increased pre-sentence detention was likely to reduce female offending.

Further, the statistics suggest pre-sentence detention of women is unjustified prison time. 

In 2017, only one third of women who were sentenced after a period of remand received further time in prison. While 91 per cent of women remanded were ultimately guilty of at least one charge, one must consider the “structural coercion” of long delays in the courts which compel defendants to plead guilty for the purpose of being released from custody. 

A study by Corrections Victoria in 2016 found that of 129 women on remand, 65 per cent were either acquitted of all charges or received a non-custodial sentence. Increasing the rates of pre-sentence imprisonment for women when 65 per cent are being unnecessarily detained pushes uncomfortably into arbitrary detention.

Further, the kinds of offences women are being jailed for are changing. By 2018, women were more likely to be remanded for breaches of justice procedure and minor drug offending than violence or property offences. 

Justice procedures include breaches of intervention orders. This is concerning considering the Women’s Legal Service Victoria has found that at least 10 per cent of IVO respondents were misidentified by police, and were in fact the victims not the perpetrators of domestic violence. 

Corrections Victoria estimates about two thirds of women have experienced domestic violence. Domestic violence causes trauma and can lead to homelessness and may exacerbate drug and alcohol use. In short, many women are going to jail not because of the harm they have done to others, but for victimisation, self-medication or non-compliance. 

Prison leads to family separation and job loss. Most women in prison are mothers, and many are the prime carers of their children. A number care for elderly parents or others. Loss of income compromises the care they provide and forces women back into dangerous domestic arrangements. 

Prison compounds the stressors and root causes of offending, it does not offer a solution. This is especially so for remand prisoners who do not have access to the services available for sentenced prisoners, including treatment, education or post-release supports.

Imprisonment in a penal institution is the harshest penalty known to Australian law. The principles that legitimise this use of coercive force by a state are a fair trial, presumption of innocence, proof beyond reasonable doubt, parsimony and individualised and proportionate justice. Pre-sentence detention avoids them all.

Remand is, at its best, preventive detention. It is detention by police, on the strength of a charge, affirmed by a court on assessment of future wrongdoing.

Reverse onus provisions are punitive. They attach to more serious charges and breaches of orders because they are more serious. The compelling reasons or exceptional circumstances thresholds are separate tests from the assessment of risk. An accused person facing a reverse onus must prove they deserve liberty pending determination of their charge. If they can’t then the risk of future wrongdoing is not considered.

The very notion that certain charges pre-empt a right to liberty means certain charges – not findings of guilt – warrant prison. This is imprisonment not as a proportionate and principled response to the proven offence in light of an offender’s personal circumstances, but imprisonment for an indeterminate period of time without any of the basic protections of a fair trial.

The most significant criminal justice reforms in the past 10 years in the name of community safety have been political reactions to crises. Increasingly, the prevalence of pre-sentence detention, lengthening prison sentences and reducing the availability of supervised post-custodial reintegration (parole) are not solutions founded on criminological or sociological research on causes of crime or crime reduction. None of these laws have subsequently been reviewed for effectiveness. 

The 2018 bail reforms have been in force for almost two years and information is emerging. The statistics are damning. Systematic and arbitrary detention of women without trial is not an acceptable crime reduction strategy. The laws must change. ■

Isabelle Skaburskis is an associate at Doogue + George defence lawyers. 

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