Victoria’s bail laws and proposed reform
The recent coronial inquest of First Nations woman, Veronica Nelson has brought to light the limitations of Victoria’s bail laws and demonstrated the need for reform.
Ms Nelson appeared unrepresented in court, after being arrested for suspicion of shoplifting. She was refused bail and sent to Victoria’s maximum-security prison, Dame Phyllis Frost Centre, where she spent three days. During her time, she called out for assistance 49 times and no medical assistance was provided. Ms Nelson died in her cell.
Coroner Simon McGregor found the conditions of Ms Nelson’s death were ‘harrowing’ and ‘preventable’. He found that the current bail laws are a ‘complete, unmitigated disaster’.
Background
The Bail Act 1977 (‘the Act’) is the legislative framework for the making of decisions as to whether a person accused of an offence should be granted bail, with or without conditions, or remanded in custody.
In 2018, the Act was amended to include the ‘reverse onus’ provisions. The amendment made it more difficult for bail to be granted, so that risk could be managed, and community safety could be maximised following the 2017 Bourke Street tragedy.
Consequently more unconvicted people awaiting trial were held in Victorian prisons. Aboriginal women have been found to be a fast-growing demographic in Australia’s prisons, disproportionally impacted by the bail laws.
At present, the onus is on the accused to demonstrate why bail should be granted. This is considered as a ‘reverse onus’ (ss4AA, 4A, 4C, Schedule 2), as it is not on the prosecution to persuade the Court that the accused should remain in custody. The accused must satisfy the bail decision maker that:-
- Exceptional circumstances exist that justify the grant of bail;
- A compelling reason exists that justifies the grant of bail.
Corone, Simon McGregor’s inquiry advised that ‘Veronica’s experience showed starkly the reality of the reverse onus regime: that an accused ensnared by the provisions will be automatically remanded in custody if their case is not able to be put immediately before a magistrate, or, additional time is needed to gather material to discharge the burden of either reverse onus test’.
The Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) provided submissions regarding the application of the Charter of Human Rights and Responsibilities (‘the Charter’) to Ms Nelson’s passing. VEOHRC submitted that the reverse onus submissions are too broad and impose an unreasonable limit on the right not to be automatically detained in custody (s.21(6) of the Charter – right to liberty). Mr McGregor was agreeable that the reverse onus impacts on the right to liberty.
Moving forward, it is undeniable that repeal of the reverse onus provisions would reduce over imprisonment and prevent deaths occurring in custody.
The Victorian Aboriginal Legal Service (‘VALS’) supports the repeal, and has proposed the following amendments to the Act:-
- Removal of the presumption against bail;
- Create a presumption in favour of bail for all offences, with the onus on the prosecution to demonstrate that bail should not be granted due to there being a specific and immediate risk to the physical safety of another person; a serious risk of interfering with a witness; or the person posing a demonstrable flight risk;
- Clarify that “flight risk” is a risk that the person will flee the jurisdiction. Bail must not be refused due to a risk that the person will not attend court for other reasons;
- Explicitly require that a person must not be remanded for an offence that is unlikely to result in a sentence of imprisonment; and
- Remove the offences of committing an indictable offence while on bail, breaching bail conditions and failure to answer bail.
In 1991, the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) made recommendations concerning procedures for persons in custody. They particularly recommended that ‘governments revise any criteria which inappropriately restricts the granting of bail to Aboriginal people’.
Mr McGregor’s inquest described the recommendations as reasonable and implementable, and VALS advises that its proposed bail amendments would reflect the RCIADIC recommendations.
Proposed bail reform is currently being considered by the Victorian government. Ultimately, any reform will need to find a balance between protecting the community, and addressing the growing demographic of Aboriginal women in custody. To reduce the amount of deaths in custody, it would be beneficial for reform to occur sooner rather than later.
Further, we note the obvious requirement for reflection on the current operation of healthcare for persons in custody. It is clear that provision of healthcare was denied to Ms Nelson, despite her multiple calls for help. Review of internal policies should be performed to ensure this does not occur again.
