The bail reform bill tabled 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 into the passing of Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman Veronica Nelson in 2020.
Aboriginal and Torres Strait Islander readers are advised this article contains the name and image of a deceased person.
The proposed bail changes have come about because of the tireless advocacy of Nelson’s family.
However, the bill doesn’t go far enough 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 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, 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.
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 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”, 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 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, 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.
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First published by THE CONVERSATION August 16, 2023
Emma Russell
Senior Lecturer in Crime, Justice & Legal Studies, La Trobe University
Dr Emma Russell is a Senior Lecturer in Crime, Justice and Legal Studies in the School of Humanities and Social Sciences at La Trobe University and a Visiting Scholar at the Centre for Crime, Law and Justice in the School of Law and Justice at the University of New South Wales.
Andreea Lachsz
PhD Candidate, University of Technology Sydney
Andreea has a particular interest in the rights of detained people, having completed her Churchill Fellowship on culturally appropriate implementation of the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) for Aboriginal and Torres Strait Islander people, and previously volunteered as a humanitarian observer with the Australian Red Cross Immigration Detention Monitoring Program (visiting facilities in Australia, PNG and Nauru). She is Head of Policy,