Wed Aug 16

3 ways the Victorian government’s bail reforms fall short – and why it must embrace 'Poccum's Law'

Written by Emma Russell, Senior Lecturer in Crime, Justice & Legal Studies, La Trobe University

Aboriginal and Torres Strait Islander readers are advised this article contains the name and image of a deceased person.

The bail reform bill tabled ^[1] in the Victorian parliament this week seeks to undo some of the worst parts of the Bail Act, which was condemned as a “complete and unmitigated disaster” in the coronial inquest ^[2] into the passing of Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman Veronica Nelson in 2020.

The proposed bail changes have come about because of the tireless advocacy of Nelson’s family.

However, the bill doesn’t go far enough ^[3] to address the discriminatory effects of the current bail regime, nor fix the state’s remand crisis.

The disaster of Victoria’s bail laws

Bail is a process which allows people accused of crimes to remain in the community, with conditions, until their court matter is finalised. However, the progressive hardening of Victoria’s bail laws ^[4] over the past decade has made bail much harder to obtain, giving rise to ballooning rates of people on remand (that is, in prison without having been convicted or sentenced).

Unsentenced people in Victoria now make up 42% of the total prison population ^[5], compared to only 18% a decade ago. The proportions are even higher among Aboriginal and Torres Strait Islander people and women. The number of unsentenced Indigenous women entering prison each year has grown by 243% over the past decade ^[6].

The negative consequences of remand are significant and can include family separation, trauma, and cycles of homelessness, unemployment, and reincarceration.

The human cost of the state’s toughened bail regime was put in the spotlight by the cruel and preventable death of Veronica Nelson ^[7] at Dame Phyllis Frost Centre women’s prison in January 2020. She had been arrested and refused bail for shoplifting related offences just three days earlier. Due to changes made to the Bail Act in 2018, she faced a presumption against being granted bail, and was refused bail for this reason.

Following the Coroner’s findings, Veronica’s family and legal experts called for the implementation of “Poccum’s Law ^[8]”, after the nickname for Veronica by her mother, Aunty Donna Nelson.

Poccum’s Law provides a best practice, evidence-based model for bail reform which would have prevented Veronica’s death in custody.

However, the bail reform bill put forward by the government this week falls short of this call.

3 ways the bill falls short

There are three major aspects of the bill which legal and health experts say undermine real progress.

1. First, bail reforms wouldn’t be implemented until six months after passing parliament. This would mean the changes would come into effect in early 2024, which is over four years after Veronica Nelson’s passing, and over 12 months after the Coroner recommended urgent and sweeping reforms to the laws.

After the tragic Bourke Street incident in January 2017, Premier Daniel Andrews acted rapidly to implement changes to bail laws ^[10] to create a presumption against bail for a large number of offences, including many minor offences. In doing so, he ignored the advice of experts ^[11], who warned the changes would have devastating consequences for already disadvantaged people.

There’s no clear reason for the government to now delay implementation of laws which would curb Victoria’s inflated prison population and prevent the needless harm and suffering caused by large numbers of people cycling through prison unsentenced.

2. Second, the bill doesn’t change the unacceptable risk test enough to ensure that people who pose no risk to community safety aren’t held in prison. Poccum’s Law requires that a person is only refused bail where they pose an immediate and identifiable risk to the safety of another person, serious risk of interfering with a witness, or a demonstrable risk of fleeing the jurisdiction.

The bill retains the power for magistrates to refuse bail where there’s only a risk that a person will not attend court or meet strict bail conditions. Retaining this power won’t address the discriminatory effects of bail laws, since people experiencing significant social disadvantage – such as people who are homeless, victim-survivors of family violence ^[13], or people with disability – are less likely to be able to comply with onerous bail conditions.

What’s more, Poccum’s Law specifies that a person must not be refused bail if they would be unlikely to receive a sentence of imprisonment. Half of those discharged from prison ^[14] have not spent any time under sentence. The bill won’t properly prevent this, which means people will continue to needlessly “churn ^[15]” through the prison system.

3. Finally, the bill doesn’t remove the presumption against bail for all offences. A presumption against bail means the accused person, who hasn’t been found guilty of any crime, has to demonstrate they should be granted bail.

Depriving someone of their liberty is one of the most serious restrictions that can be imposed on a person’s human rights. The presumption against bail erodes the presumption of innocence ^[16], and should be repealed in its entirety.

Instead, the onus should be on the prosecutor to persuade the court an accused person shouldn’t be granted bail. This aligns with the UN Committee against Torture’s ^[17] recommendation that remand be “resorted to only in exceptional circumstances” and the continued calls ^[18] to properly implement the findings of the Royal Commission into Aboriginal Deaths in Custody.

Half-hearted bail reforms can only lead to more suffering and harm. The government ought to listen to the family of Veronica Nelson and the expertise of the 56 Aboriginal, legal, human rights and health organisations that have endorsed Poccum’s Law.