Changes to bail law slam the door on equality

There are times when competing public policies proposed by our governments collide with each other.

Currently, both federal and state governments are focusing on law reform to help and support victims and potential victims of domestic violence and domestic violence. At the same time, our State Government and others are working to reduce the ever-increasing number of Aboriginal and Torres Strait Islander people who remain in custody as convicted prisoners or on remand without sentence.

The disproportionate number of Aboriginal and Torres Strait Islander people in our prisons has been a concern for a long time and the trend is not improving.

Our State Government has introduced a bill that it intends to pass that will directly increase the number of Aboriginal and Torres Strait Islander people who end up in prison. How so? Echoing recent amendments to the Bail Act in New South Wales, our Government is also proposing amendments to our own Bail Act that will have a discriminatory and disproportionate impact on Aboriginal and Torres Strait Islander people.

The proposed changes to our Bail Bonds Act are as follows:

Part 2 – Bail Amendment Act 1985

3 – Amendment of Article 11 – Conditions for release on bail

Granting bail for an applicant charged with committing a crime in accordance with Art. 31 section 2aa letter (b) the Intervention Orders (Prevention of Abuse) Act 2009 in relation to an order that is a recognized DVO within the meaning of s. 29D of this Act must be subject to the conditions of electronic monitoring (unless the applicant is a child).

Article 31(1) 2aa – currently worded as follows

Notwithstanding any other provision of this section, if a person breaches the terms of an intervention order (other than the terms of an intervention order imposed under section 13) and either:

A. the infringement constitutes a second or subsequent such infringement;

B. or (b) the act or omission that allegedly constitutes an infringement involved physical violence or the threat of physical violence…

The proposed amendment aims to support victims of alleged family and domestic violence who have already had recourse to obtaining an intervention order (formerly known as a restraining order) against another person in relation to allegations of family and domestic violence, by imposing specific statutory requirements regarding how such an order will enable the accused to apply for bail pending the outcome of the offense with which he is charged.

However, in doing so it will directly lead to an increase in the number of non-sentenced prisoners in South Australia, disproportionately compared to the Aboriginal and Torres Strait Islander population.

As I have written before, law reform is often designed and implemented with a city-centric focus and approach. However, 30% of Australians live outside major cities, in rural, regional and remote areas. This is no different for many Aboriginal and Torres Strait Islander people, who often live in remote and very remote areas.

The simple fact is that electronic monitoring cannot be carried out in these areas, e.g. APY Lands. This means that no requirement requiring electronic monitoring to enable bail can be granted to an alleged offender who lives in this area or in similarly remote or regional locations.

So if we look at alleged offenders who appear in court in Port Augusta, for example, those charged with family and domestic violence and breaches of intervention orders are disproportionately Aboriginal and Torres Strait Islander people. All alleged criminals will not and will not be able to apply for bail if this amendment to the Bail Act comes into force.

Like other laws that discriminate against people living in rural, regional and remote areas, such as those requiring mandatory driving license disqualification, these laws, if passed by Parliament, would set a different standard for Australians in the country, different from those in cities and towns. in that they are clearly discriminatory, particularly against Aboriginal and Torres Strait Islander people.

There are elements that make this even more problematic. Aboriginal women rarely testify against Aboriginal men over alleged family and domestic violence. Such charges are almost always dropped due to the victim’s unwillingness to appear in court to testify. If it is certain that when reporting an Aboriginal man for alleged domestic violence or breach of an intervention order that he will not be released on bail and returned to the community, but will remain in custody, the real question is whether the report will be made in the first place handed over to the police. Additionally, these fixes may perversely result in driving the problem underground and making the situation worse, not better.

There is also a genuine question as to whether putting Aboriginal and Torres Strait Islander criminals in custody has any deterrent effect at all. Some New South Wales academics have spoken more broadly on the same topic in relation to bail reforms in that state. There is no evidence, empirical or otherwise, that incarceration alone leads to reductions in domestic violence and domestic violence. This is because family and domestic violence is a complex problem for which there is no silver bullet, and certainly no single solution.

These laws, if passed by Parliament, would set a different standard for Australians at home, different from those in the city, and would therefore be clearly discriminatory, particularly against Aboriginal and Torres Strait Islander people

It is widely known that a set of support measures is needed to help people affected by domestic and family violence, usually women and children. These measures include support from specially designed services, governmental and non-governmental, to help families escape home and live independently; that create a framework for the protection of victims of domestic violence and domestic violence. These may include housing, money and other material support for victims, as well as education and rehabilitation for offenders. There is no easy solution to our current epidemic of domestic violence and domestic violence.

However, once again we found that rural, regional and remote areas were ignored. Such support and services are largely missing in these areas, and certainly in the APY Lands. Changing bail laws can be tempting and easier than spending large sums of money on supports and services needed in remote parts of our state. But will changing bail laws effectively address the underlying problem? Investing in the right services and support is much harder to come by and certainly not currently achievable in APY Lands.

Moreover, any tightening of bail laws is yet another chip away at the most important principle of our criminal justice system – the presumption of innocence. People denied bail often wait months or years for trial and may be acquitted. Not all complaints submitted to the police are considered by the court. Every day spent in custody for an unproven crime is an injustice.

The Australian Bureau of Statistics reports that from June 2022 to June 2023, the unsentenced prison population in Australia increased by 7.1%. Nearly 40% of Australians currently in prison remain without a sentence – an indictment of a country that is said to respect the rule of law.

According to the Australia Institute, as of September 2023, Aboriginal or Torres Strait Islander people were 17 times more likely to be imprisoned in Australia than non-Indigenous people. One in 22 Aboriginal and Torres Strait Islander adult men in Australia is in prison. Furthermore, the Australian Government’s Institute of Health and Welfare calculated in November 2023 that 32% of Australia’s adult prison population was Aboriginal and Torres Strait Islander; this is a terrifying statistic considering Australians make up just 3.8% of our population.

Yet here we are about to pass a law that directly discriminates against this group of people in our society and can only increase and increase the number of people incarcerated. The question arises whether this amendment has been thought through by the Attorney General and his Department. What does State Voice have to say about it?

None of this should detract from the efforts made by Australian governments and their agencies to reduce the family and domestic violence that plagues Australian society. But when we see different government priorities colliding, it must be acknowledged and accompanied by an explanation of why one positive public policy initiative loses ground to the other.

Prison is the bluntest instrument. Coupled with the fact that there is uncertainty as to how a case will play out in the criminal justice system, we must recognize the particular circumstances of some South Australians who will be unfairly affected by the proposed change to the Bail Act and take no further action, until equal opportunities are achieved.

When we are faced with a situation where a group in our society cannot have access to electronic monitoring, thus losing any chance of being released on bail – instead being left to rot in a prison almost 1,000 kilometers away from their families and relatives and at home, for example in Port Augusta Prison – something is wrong. We therefore make a presumption in favor of bail in most cases.

This amendment can only work if the state government simultaneously invests in remote areas to implement the options set out in the amendment, in particular the ability to electronically monitor all defendants facing such charges, regardless of where you reside.

Here we have the Government asking our Parliament to pass legislation that will virtually guarantee an increase in the number of Aboriginal and Torres Strait Islander people in custody due to their unique disadvantage of living remotely, and will increase the number of our unsentenced prisoners, particularly Aboriginal people and Torres Strait Islanders.

Not only is this contrary to her own political position, it is also grossly discriminatory and clearly unfair.

The Bill looks very much like the imitation proposed following the New South Wales amendments, and has been lazily drafted to the point where it is certain to lead to unforeseen consequences and create another form of injustice based on discrimination against some members of our society.

Of these people, the situation is undoubtedly the worst off for Aboriginal and Torres Strait Islander men who live in remote communities. We must ask ourselves, as we pursue a single public policy goal, are we comfortable with that outcome? If this does not happen, this proposed piece of legislation requires a major rework. Take it back to the drawing board.

Morry Bailes is a senior lawyer and business advisor to Tindall Gask Bentley Lawyers, former President of the Law Council of Australia and former President of the Law Society of South Australia.