tag:theconversation.com,2011:/ca-fr/topics/bail-law-19532/articlesBail law – La Conversation2023-08-16T02:50:54Ztag:theconversation.com,2011:article/2106942023-08-16T02:50:54Z2023-08-16T02:50:54Z3 ways the Victorian government’s bail reforms fall short – and why it must embrace ‘Poccum’s Law’<p><em>Aboriginal and Torres Strait Islander readers are advised this article contains the name and image of a deceased person.</em></p>
<p>The bail reform bill <a href="https://www.legislation.vic.gov.au/bills/bail-amendment-bill-2023">tabled</a> 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 <a href="https://www.coronerscourt.vic.gov.au/sites/default/files/2023-04/COR%202020%200021%20-%20Veronica%20Nelson%20Inquiry%20-%20Form%2037%20-%20Finding%20into%20Death%20with%20Inquest%20-%2030%20January%202023%20-%20Amended%20%281%29.pdf">coronial inquest</a> into the passing of Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman Veronica Nelson in 2020. </p>
<p>The proposed bail changes have come about because of the tireless advocacy of Nelson’s family. </p>
<p>However, the bill <a href="https://www.vals.org.au/victorian-governments-bail-bill-is-a-good-first-step-but-can-be-improved/">doesn’t go far enough</a> to address the discriminatory effects of the current bail regime, nor fix the state’s remand crisis.</p>
<h2>The disaster of Victoria’s bail laws</h2>
<p>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 <a href="https://www.unswlawjournal.unsw.edu.au/article/changing-the-rules-on-bail-an-analysis-of-recent-legislative-reforms-in-three-australian-jurisdictions">progressive hardening of Victoria’s bail laws</a> 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).</p>
<p>Unsentenced people in Victoria now make up <a href="https://www.corrections.vic.gov.au/annual-prisons-statistical-profile">42% of the total prison population</a>, 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 <a href="https://www.corrections.vic.gov.au/annual-prisons-statistical-profile">243% over the past decade</a>.</p>
<p>The negative consequences of remand are significant and can include family separation, trauma, and cycles of homelessness, unemployment, and reincarceration.</p>
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<p>The human cost of the state’s toughened bail regime was put in the spotlight by the cruel and preventable <a href="https://www.theage.com.au/politics/victoria/bail-reforms-aimed-at-fixing-disaster-law-face-one-year-wait-20230726-p5drd5.html">death of Veronica Nelson</a> 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.</p>
<p>Following the Coroner’s findings, Veronica’s family and legal experts called for the implementation of “<a href="https://www.vals.org.au/wp-content/uploads/2023/03/Poccums-Law.pdf">Poccum’s Law</a>”, after the nickname for Veronica by her mother, Aunty Donna Nelson.</p>
<p>Poccum’s Law provides a best practice, evidence-based model for bail reform which would have prevented Veronica’s death in custody.</p>
<p>However, the bail reform bill put forward by the government this week falls short of this call. </p>
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Read more:
<a href="https://theconversation.com/number-of-women-on-remand-in-victoria-soars-due-to-outdated-bail-laws-165301">Number of women on remand in Victoria soars due to outdated bail laws</a>
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<h2>3 ways the bill falls short</h2>
<p>There are three major aspects of the bill which legal and health experts say undermine real progress.</p>
<p><strong>1.</strong> 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.</p>
<p>After the tragic Bourke Street incident in January 2017, Premier Daniel Andrews acted rapidly to implement <a href="https://www.abc.net.au/news/2017-01-23/bourke-st-rampage-prompts-bail-law-review-in-victoria/8202300">changes to bail laws</a> to create a presumption against bail for a large number of offences, including many minor offences. In doing so, he <a href="https://www.theguardian.com/australia-news/2017/jan/25/delaying-tragedy-the-bourke-street-deaths-and-the-push-to-change-victorias-bail-laws">ignored the advice of experts</a>, who warned the changes would have devastating consequences for already disadvantaged people.</p>
<p>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.</p>
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Read more:
<a href="https://theconversation.com/victorias-prison-health-care-system-should-match-community-health-care-180558">Victoria’s prison health care system should match community health care</a>
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<p><strong>2.</strong> 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. </p>
<p>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, <a href="https://www.crimejusticejournal.com/article/view/1882">victim-survivors of family violence</a>, or people with disability – are less likely to be able to comply with onerous bail conditions. </p>
<p>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. <a href="https://www.corrections.vic.gov.au/annual-prisons-statistical-profile">Half of those discharged from prison</a> have not spent any time under sentence. The bill won’t properly prevent this, which means people will continue to needlessly “<a href="https://journals.sagepub.com/doi/abs/10.1177/1462474520967566">churn</a>” through the prison system.</p>
<p><strong>3.</strong> 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. </p>
<p>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 <a href="https://academic.oup.com/bjc/article/57/3/664/2623968">erodes the presumption of innocence</a>, and should be repealed in its entirety.</p>
<p>Instead, the onus should be on the prosecutor to persuade the court an accused person shouldn’t be granted bail. This aligns with the <a href="https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fAUS%2fCO%2f6&Lang=en">UN Committee against Torture’s</a> recommendation that remand be “resorted to only in exceptional circumstances” and the <a href="https://openresearch-repository.anu.edu.au/bitstream/1885/229826/2/WP_140_Anthony_et_al_2021.pdf">continued calls</a> to properly implement the findings of the Royal Commission into Aboriginal Deaths in Custody.</p>
<p>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.</p><img src="https://counter.theconversation.com/content/210694/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emma Russell is a Visiting Scholar at the Centre for Crime Law and Justice at University of New South Wales. She is affiliated with Smart Justice for Women. </span></em></p><p class="fine-print"><em><span>Andreea Lachsz was the Head of Policy, Communications and Strategy at the Victorian Aboriginal Legal Service during the Inquest into the passing of Veronica Nelson.</span></em></p><p class="fine-print"><em><span>Sarah Schwartz is the Principal Lawyer of the Wirraway Practice at the Victorian Aboriginal Legal Service and acted in the Inquest into the passing of Veronica Nelson.</span></em></p>Poccum’s Law provides a best practice, evidence-based model for bail reform which would have prevented Veronica Nelson’s death in custody.Emma Russell, Senior Lecturer in Crime, Justice & Legal Studies, La Trobe UniversityAndreea Lachsz, PhD Candidate, University of Technology SydneySarah Schwartz, Lecturer, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/716972017-01-23T04:32:59Z2017-01-23T04:32:59ZAfter Bourke St, Victoria should not rush in on bail reform<figure><img src="https://images.theconversation.com/files/153794/original/image-20170123-11257-pfai4j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Daniel Andrews has announced reforms to Victoria's bail laws following the events in Melbourne's CBD last Friday.</span> <span class="attribution"><span class="source">AAP/Angus Livingston</span></span></figcaption></figure><p>The <a href="http://www.9news.com.au/National/2017/01/21/11/45/Premier-Daniel-Andrews-joins-mourners-to-lay-floral-tributes-for-Bourke-Street-Mall-victims">horrifying event</a> of last Friday in Melbourne’s CBD was yet another episode where a person used a vehicle as a weapon of destruction. It left five people, including a baby boy, dead. Another 30 people were injured, many seriously.</p>
<p>The alleged perpetrator, <a href="http://www.theage.com.au/victoria/bourke-street-mall-driver-identified-as-james-jimmy-gargasoulas-20170120-gtvs2m.html">Dimitrious Gargasoulas</a>, was revealed to be on bail in relation to another alleged offence six days before the attack, <a href="http://www.abc.net.au/news/2017-01-21/melbourne-cbd-incident-victoria-police-chief-defends-officers/8200206">despite opposition</a> from Victoria Police prosecutors. A bail justice (an out-of-hours volunteer honorary justice, like a justice of the peace) had granted Gargasoulas bail on January 14.</p>
<p>In response, Victorian Premier Daniel Andrews <a href="http://www.abc.net.au/news/2017-01-23/bourke-st-rampage-prompts-bail-law-review-in-victoria/8202300">has announced</a> that magistrates, rather than bail justices, will be exclusively deployed to hear bail applications in serious matters. Andrews has also directed the former director of public prosecutions, Paul Coghlan, to review Victoria’s bail system.</p>
<h2>Does the bail justice system work?</h2>
<p>Faced with cries to “do something” when a crisis erupts, governments, understandably, become risk-averse. So, it was quite predictable that the Andrews government’s first target in this case was the <a href="http://www.justice.vic.gov.au/utility/volunteering/bail+justice+position+description">bail justice system</a>. This uniquely Victorian initiative has <a href="http://www.emeraldinsight.com/doi/pdfplus/10.1108/JCRPP-08-2015-0035">drawn praise</a> for more than two decades.</p>
<p>While one can sympathise with those who are calling for review and change, we need to exercise caution before overhauling the operation of bail laws on the basis of one, albeit horrendous and tragic, case.</p>
<p>The bail justice system is one of the reasons usually given to explain why Victorians continue to enjoy the lowest remand-in-custody rates in Australia.</p>
<p>There is no evidence that that achievement has compromised safety for Victorians generally. Moreover, police officers <a href="http://www.lawreform.vic.gov.au/sites/default/files/Bail_Summary_web_version.pdf">actually make 90% of bail decisions</a>; magistrates or bail justices are only called in to adjudicate in the event of police denying bail.</p>
<p>There is also no reason to suspect that a magistrate would not have reached the same bail conclusion as the bail justice did in relation to Gargasoulas on January 14.</p>
<h2>Denying bail fills our prisons</h2>
<p>The denial of bail is also a <a href="https://theconversation.com/not-for-punishment-we-need-to-understand-bail-not-review-it-28651">significant factor</a> in the seemingly unstoppable rise in Australia’s prisoner numbers.</p>
<p>There was yet another significant rise in numbers last year. In the September quarter of 2016, the <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0">average number</a> of full-time prisoners was 38,998. Of these, 32% (12,332) were unsentenced – that is, denied bail. </p>
<p>This takes Australia, for the first time in its modern history, out of the 15-30% range – which includes, for example, the UK, the US, Canada, Russia, Israel, Poland, New Zealand and Germany – and puts it into the 30-50% range found in Brazil, Thailand, Papua New Guinea, France, Kenya and Mexico. </p>
<p>The number of unsentenced prisoners in Australia increased by 22% from 2015 to 2016. This followed a <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4517.0">21% increase</a> from 2014 to 2015. Over the last five years, unsentenced prisoner numbers in Australia have increased 81%. The trend is financially and socially irresponsible and unsustainable.</p>
<p>Australians need to be a <a href="https://theconversation.com/when-bail-causes-outrage-dont-just-blame-the-courts-46084">little more forgiving</a> regarding the decisions of bail authorities when their decisions turn out to be ill-fated. Thousands of accused persons are granted bail each year over police objections with few adverse consequences. </p>
<p>Australia needs to be very careful not to allow the bail system – whether it is overseen by magistrates or lay justices – to become a political scapegoat at the hands of commentators exercising 20/20 hindsight.</p>
<p>Finally, we must be very careful not to rush to judgement and pretend that by tightening certain justice processes the problem will go away. Simply putting (and keeping) behind bars for months at a time everyone whom someone has deemed to be a risk to their family’s safety, their own safety or public safety is not the answer.</p><img src="https://counter.theconversation.com/content/71697/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre receives funding from the Criminology Research Council in relation to research into bail in Australia.</span></em></p>Australia needs to be very careful not to allow the bail system to become a political scapegoat at the hands of commentators exercising 20/20 hindsight.Rick Sarre, Professor of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/684902016-12-15T19:27:14Z2016-12-15T19:27:14ZNSW bail laws mean well but are landing homeless kids in prison<figure><img src="https://images.theconversation.com/files/149809/original/image-20161213-1592-3xmrjp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some homeless youth facing criminal charges in NSW are being accommodated in prisons.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/69187071@N02/14661293083/in/photolist-okyXDe-n49Lc-jVAiNZ-81JCL1-8369Jd-8YxYDd-dXN62e-81FtLe-dXTKYf-6xHubk-81JA6w-dXTEmq-bquHLZ-oCkSyH-jVzBKp-eS2MWB-4vkDgi-7N6NAd-opp47E-82sbFp-7aopVg-bquGYH-bpwA57-6A7hgW-jVAnvi-4AdXXN-8YxYHb-pWcH5-dXN1YF-dXN1yn-dXTH6o-6rU2zs-dXTGmL-dXTEvC-6bwUVR-dXTFsA-eci1Nb-EdBVLh-dXTGd7-4m2Gu-n8xNGF-dXTGwb-83zxqq-dXTKEJ-dXN31x-dXTF65-8ZQTRs-qy2hW3-jVzzqp-jVzzNi">Adrian Fallace/flikr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Every year in New South Wales, scores of children are locked up because they don’t have a safe place to live. About one-third of them are Indigenous; about half are in the care of the state. Some are fleeing domestic violence, others have a mental illness, or are waiting on a place in a refuge or rehab for a drug or alcohol addiction. </p>
<p>The <a href="http://www.justice.nsw.gov.au/Documents/Annual%20Reports/JusticeAnnualReport2015-16.pdf">NSW Department of Justice</a> reports that children charged with a criminal offence who were unable to meet their bail conditions were kept in custody on 67 occasions in 2015-16 alone.</p>
<p><a href="http://www.community.nsw.gov.au/__data/assets/pdf_file/0007/319921/endorsed_practice_guidelines.pdf">Under NSW law</a>, a child awaiting trial is presumed innocent of charges and has a right to be at liberty. So why are homeless kids ending up in custody?</p>
<p>In part, it’s because there’s section in NSW’s Bail Act that disadvantages these children. Despite being designed to protect children, it operates as an example of a policy that looks good on paper but, in reality, can have disastrous results.</p>
<h2>A well-meaning section of the NSW Bail Act</h2>
<p>Under Section 28 of the <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ba201341/s28.html">Bail Act</a> a court may impose an “accommodation requirement” when granting bail – that is, bail is dependent on the child having suitable accommodation. If accommodation is not available, the child will not be released. </p>
<p>The law was designed to overcome the fact that <a href="http://www.juvenile.justice.nsw.gov.au/Documents/Annual%20Report%202007-08%20(part%201).pdf">hundreds of homeless children</a> each year were remanded in custody despite conditional bail having been granted.</p>
<p>Approximately 90% of them spent an <a href="http://www.dpc.nsw.gov.au/__data/assets/pdf_file/0008/33794/Executive_Summary_and_Recommendations_-_Special_Commission_of_Inquiry_into_Child_Protection_Services_in_New_South_Wales.pdf">average of eight days in custody</a> as a result.</p>
<p>Homeless children were often required to “to reside as FACS directs” – a bail condition that presupposed that Family and Community Services (FACS) would provide them with accommodation. </p>
<p>But the Children’s Court was unable to compel FACS to provide accommodation to children. As some commentators <a href="http://www.austlii.edu.au/au/journals/CICrimJust/2009/18.pdf">have noted</a>, FACS either could not, or would not, find children accommodation and there was no legally enforceable obligation on it to do so. </p>
<p>According to one <a href="http://unsworks.unsw.edu.au/fapi/datastream/unsworks:38185/SOURCE02?view=true">NSW Children’s Court</a> judge: </p>
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<p>… the detention of such children … because they have no appropriate bail accommodation starkly demonstrates … how the criminal justice system may be inappropriately used for essentially welfare issues.</p>
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<p>The <a href="https://www.parliament.nsw.gov.au/committees/DBAssets/InquiryReport/ReportAcrobat/5396/9%20to%2014%20Report%20Volume%201.pdf">NSW parliament</a> attributes this failure of support and care services to a dramatic increase in the juvenile remand population, which <a href="http://www.bocsar.nsw.gov.au/Documents/CJB/cjb128.pdf">increased by one-third</a> between 2007 and 2008 alone.</p>
<h2>Section 28 has not fixed the problem</h2>
<p>Championed by the <a href="http://www.dpc.nsw.gov.au/__data/assets/pdf_file/0008/33794/Executive_Summary_and_Recommendations_-_Special_Commission_of_Inquiry_into_Child_Protection_Services_in_New_South_Wales.pdf">NSW Ombudsman</a> and many children’s advocates and legal representatives, Section 28 was meant to ensure that children were not turfed out onto the street or kept in jail because they hadn’t anywhere safe to go.</p>
<p>Anecdotally, bureaucrats and judicial officers say Section 28 is working because it puts pressure on agencies – such as FACS – to find children granted bail safe and suitable accommodation. But statistics show the proposed solution has failed many children who remain in custody. </p>
<p>The state still cannot be compelled to provide accommodation to homeless children. At best, the Children’s Court can only require agencies to report every two days on what progress has been made to find accommodation. If none has been found, the child remains in custody.</p>
<h2>An offence against UN and local laws</h2>
<p>Section 28 goes against UN <a href="http://www.ohchr.org/en/professionalinterest/pages/crc.aspx">Convention on the Rights of the Child</a>, the <a href="http://www.un.org/en/universal-declaration-human-rights/">Universal Declaration of Human Rights</a> and the <a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">International Covenant on Civil and Political Rights</a>. </p>
<p>It breaches a range of UN rules and guidelines: the <a href="http://www.un.org/documents/ga/res/40/a40r033.htm">Standard Minimum Rules for the Administration of Juvenile Justice </a> (the “Beijing Rules”), the <a href="http://www.un.org/documents/ga/res/45/a45r112.htm">Guidelines for the Prevention of Juvenile Delinquency</a> (the “Riyadh Guidelines”), and the <a href="http://www.un.org/documents/ga/res/45/a45r113.htm">Rules for the Protection of Juveniles Deprived of their Liberty</a>. </p>
<p>While some of these instruments are not enforceable in Australia, they hold considerable sway.</p>
<p>Section 28 also offends against local law. Section 6 of the <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/cpa1987261/">NSW Children (Criminal Proceedings) Act</a>, for example, requires that the penalty imposed on a child for an offence should be no greater than that imposed upon an adult who commits an offence of a similar kind. </p>
<p>The effect of Section 28, however, is that a child without suitable accommodation may be detained in circumstances where a homeless adult, charged with a like offence would not. </p>
<h2>Children in out-of-home care are still disadvantaged</h2>
<p><a href="http://www.unsworks.unsw.edu.au/primo_library/libweb/action/dlDisplay.do?vid=UNSWORKS&docId=unsworks_38185">My research</a> shows children in state care – who make up less than 1% of the NSW population – are especially vulnerable to being incarcerated because they lack suitable accommodation. </p>
<p>I found that twice as many children in care had been homeless at some point in their lives, compared to children who had never been in care (48% to 22%). I also found that placement in care was no guarantee a child would receive stable, secure accommodation or assistance from the child welfare department. </p>
<p>This is a long-standing problem. In 1992, girls in care were <a href="http://trove.nla.gov.au/work/34862027?selectedversion=NBD9070474">40 times more likely</a> to be remanded in custody than girls who had never been in care, purely because they were unable to meet bail conditions related to their welfare status (poverty, homelessness, exposure to abuse and lack of agency support).</p>
<p>Last year, the <a href="http://www.csi.edu.au/research/project/cost-of-youth-homelessness/">largest survey of homeless youth in Australia</a> reported that two-thirds of children had been in care. NSW Premier Mike Baird has also said that people who had grown up in the care of the state make up <a href="http://www.smh.com.au/nsw/mike-baird-announces-reform-to-states-broken-child-welfare-system-20161117-gsrbb6.html">60% of the homeless population</a>.</p>
<h2>The ‘university of crime’</h2>
<p>Being in custody, even for short periods of time, <a href="http://netk.net.au/Prisons/Prisons2.pdf">increases the likelihood of criminal behaviour</a>. Prisons are “universities of crime” where offenders can learn new techniques from their peers.</p>
<p>Prisons fracture community and family ties, may harden and brutalise inmates, and can worsen a person’s mental health. They can lead to physical and psychological hardship and the risk of assault or of death in custody. </p>
<p>The crime-producing effects continue post-incarceration: former inmates are labelled, de-skilled, less employable, and may rely on criminal networks established in custody to get by. They have access to benefits and social programs, and families of offenders and their communities may also be drawn into crime and the criminal justice system.</p>
<p>The UK’s Prison Reform Trust has described the detention of children in care for <a href="http://www.prisonreformtrust.org.uk/portals/0/documents/punishingdisadvantage.pdf">reasons unrelated to their offending</a>, such as homelessness or absconding, as a breach of the child welfare authorities’ statutory duty to protect and promote child welfare.</p>
<p>It is about time that NSW authorities were likewise held to account for their plans and policy tweaks that have achieved nothing to help our most vulnerable children stay out of jail.</p><img src="https://counter.theconversation.com/content/68490/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kath McFarlane was Chief Investigator for a NSW Labor Government-awarded tender to Charles Sturt University to examine bail practices in the Children’s Court, and has advised on the Family & Community Services Pathways of Care study. In 2015 she was Chief of Staff to the NSW Coalition Minister for Family and Community Services.</span></em></p>Homeless children charged in NSW with a criminal offence who are unable to meet bail conditions are being kept in custody. It’s due, in part, to a well-meant but flawed section of the Bail Act.Katherine McFarlane, Senior Lecturer, Centre for Law & Justice, Charles Sturt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/460842015-08-17T04:01:09Z2015-08-17T04:01:09ZWhen bail causes outrage, don’t just blame the courts<p>On December 12, 2013, Man Haron Monis, having been charged with being an accessory to murder and facing multiple sexual assault charges, was granted bail. A year later, while still on bail, Monis began his <a href="https://theconversation.com/au/topics/sydney-siege">Lindt Cafe siege</a>, with tragic consequences. </p>
<p>The Guardian <a href="http://www.theguardian.com/australia-news/2015/aug/12/police-said-prosecutor-on-man-haron-monis-bail-hearing-terrible-court-told">reported</a> last week that the head of the New South Wales homicide squad had relayed to his superior a hearsay opinion that the prosecutor in the 2013 bail hearing was “terrible and clearly not across the brief”.</p>
<p>The <a href="http://www.abc.net.au/news/2015-08-17/inquest-into-sydney-lindt-cafe-attack-resumes/6690232">resumption</a> this week of the inquest into the siege, with a focus on why Monis was on bail at the time, is likely to intensify scrutiny of this issue. It is possible that there may be a witch-hunt in pursuit of the prosecutor, who may or may not have fought hard enough to keep Monis behind bars, or even the magistrate who acceded to the submissions of counsel for Monis to be granted bail. </p>
<h2>Why we cannot afford a witch-hunt</h2>
<p>Any such witch-hunt should be resisted for three important reasons.</p>
<p>The first is that governments in these circumstances, steeled by populist fervour, often go into “risk-averse” mode and make it more likely that persons charged with serious offences remain behind bars. If that happens, prisoner numbers will rise. It is well known that when governments <a href="https://theconversation.com/not-for-punishment-we-need-to-understand-bail-not-review-it-28651">focus on isolated examples</a>, often <a href="https://www.crimejusticejournal.com/article/view/84">under pressure</a> from the media and public, <a href="https://www.crimejusticejournal.com/article/view/181">short-sighted justice policy</a> usually results. </p>
<p><a href="http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4512.0Media%20Release1March%20Quarter%202015?opendocument&tabname=Summary&prodno=4512.0&issue=March%20Quarter%202015&num=&view=">Prisoner numbers</a> in Australia are already the highest they have ever been. The <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4512.0Main%20Features1March%20Quarter%202015?opendocument&tabname=Summary&prodno=4512.0&issue=March%20Quarter%202015&num=&view=">rate of imprisonment</a> of Australians (194 per 100,000 population) is at a <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4517.0">ten-year high</a>. A quick look at imprisonment rates in <a href="https://theconversation.com/nordic-prisons-less-crowded-less-punitive-better-staffed-12885">Scandinavia</a> and <a href="http://prisonwatchuk.com/2015/06/11/uk-prison-population-stats/">Western Europe</a> tells us that you don’t need high levels of imprisonment to keep crime at bay.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=545&fit=crop&dpr=1 600w, https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=545&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=545&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=685&fit=crop&dpr=1 754w, https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=685&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=685&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The number of unsentenced prisoners has continued to rise across the country.</span>
<span class="attribution"><a class="source" href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0">ABS</a></span>
</figcaption>
</figure>
<p>The second reason, and one allied to the first, is that <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0">more than 9000</a> adult prisoners are in custody because they have been refused bail. That represents about one-quarter of Australia’s total adult prison population. This proportion has grown from 14% two decades ago, and is on an unsustainable trajectory.</p>
<p>There are significant costs to the state (the need for more prison beds) and to remandees (for example, loss of employment and family disruption) if these trends continue.</p>
<p>The third reason is that our feelings of anger or frustration toward specific justice personnel may be entirely misplaced. There has long been a suspicion that what happens at the bail hearing is only the tip of the iceberg; the decision to remand a person in custody is not simply dependent upon a prosecutor’s preparation or a magistrate’s discretion, but rather is an outcome that emerges from a complex array of social and legal dynamics. </p>
<p>These dynamics will vary between jurisdictions and over time. How else could one explain the anomalous position in the <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2014%7EMain%20Features%7ENorthern%20Territory%7E10021">Northern Territory</a>, which has a rate of remand that is consistently three to four times the rate found in the rest of Australia? And why has South Australia had the <a href="http://indaily.com.au/news/2014/12/12/states-prisons-full-third-remand/">highest remand proportion</a> of any jurisdiction in Australia for more than a decade?</p>
<p>If remand outcomes were simply a consequence of prosecutorial practice, or magistrates’ choices, then we would have to conclude that Northern Territory and South Australian magistrates were somehow different from those found in the rest of Australia, given that bail legislation is relatively uniform. That is clearly not the case. So what else is at work here?</p>
<h2>What drives the numbers remanded in custody?</h2>
<p>A <a href="http://www.aic.gov.au/publications/current%20series/rpp/21-40/rpp23.html">number</a> of <a href="http://www.criminologyresearchcouncil.gov.au/reports/2005-11-remand.html">studies</a> have been <a href="http://www.aic.gov.au/publications/current%20series/tandi/301-320/tandi310.html">conducted</a> over the last 15 years to uncover the true drivers of the numbers remanded in custody. The research has revealed important additional factors, over and above the accountability of bail authorities, and whether or not the prosecutor was “across the brief”.</p>
<p>One driver relates to police practices. A person does not get to a court bail hearing unless a decision has first been made to arrest them (rather than summons them) and to refuse them police bail. The manner in which this occurs around Australia varies widely, especially in the way some police in particular jurisdictions use custodial remand as a short-term incapacitation strategy.</p>
<p>A second driver is found when one considers the typical characteristics of those charged. Arrested persons are today consistently found to be affected by drugs and alcohol or to suffer mental health problems. In some jurisdictions, resources to house and care for accused persons with specific needs are far more available. The likelihood of bail is therefore greater. </p>
<p>Any justice system that can draw on a wide range of community resources – such as access to affordable housing, mental health services and drug rehabilitation – will enjoy lower remand-in-custody rates.</p>
<p>Thus the key to understanding remand-in-custody fluctuations is more likely to be discovered outside the courtroom than inside. The decisions made by the non-judicial participants in the process, especially police decision-makers and the information that they choose to provide to the courts, and parliamentarians, who may or may not choose to spend on resources for accused persons, are as crucial to the outcome as any decision made by a magistrate.</p>
<p>What this means is that we need to be a little more forgiving regarding the attentiveness (or otherwise) of the public prosecutor and the decision of the magistrate to grant Monis bail in December 2013. Along the way we need to remind ourselves that we owe it to all accused persons, who are entitled to the presumption of innocence, to protect them from becoming scapegoats in a political exercise driven by risk-aversion.</p><img src="https://counter.theconversation.com/content/46084/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre's research into remand in custody (with Sue King and David Bamford) was conducted with two grants from the Criminology Research Council (administered by the Australian Institute of Criminology).</span></em></p>The spotlight is on a 2013 decision to grant bail to Man Haron Monis, the man responsible for the Lindt Cafe siege a year later. It must be hoped risk-averse politicians can avoid knee-jerk responses.Rick Sarre, Professor of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.