Victoria’s ‘broken’ bail laws are a gendered issue

New research has found reforms to Victoria’s bail laws, intended to target violent men, are “entrenching disadvantage” and disproportionately impacting women and First Nations Australians.

Just over a year after a man mowed down pedestrians on Bourke Street, killing six people, the Victorian government implemented strict and punitive new bail laws.

While ostensibly meant to prevent similar tragedies and target violent men, this crackdown has led to unprecedented numbers of women and First Nations peoples being held in prison without having been found guilty of a crime.

New research has found that the bail reforms by the Andrews government have “disproportionately” impacted marginalised women and First Nations Australians, with those experiencing homelessness most affected.

There has been a growing campaign for these bail laws to be overturned, with numerous legal and human rights organisations leading a push for the state government to reconsider them before the next election.

The 2018 bail law reforms meant that individuals accused of committing a schedule 2 offence while on bail for a schedule 1 or 2 offence must show “exceptional circumstances” to obtain bail. In effect, this has led to Victorians being required to meet the highest possible legal test to be granted bail for charges such as shoplifting or drug possession, even though these offences wouldn’t typically come with a prison sentence.

A constellation of circumstances

Academics Dr Emma Russell, Dr Bree Carlton and Dr Danielle Tyson found that these changes have directly led to significantly more women and Indigenous Australians being placed on remand for low-level offences.

“This complex legal manoeuvre has fuelled sustained growth in remand numbers and exacerbated the problems of growing numbers of women leaving prison without serving any time under sentence,” they said in a new research paper.

The researchers spent 100 hours at the Melbourne Magistrates Court’s bail and remand court in 2019 as part of the project, observing women applying for bail or appearing in court being remanded. They also spoke with 13 criminal defence lawyers about women obtaining bail.

Dr Russell, a senior lecturer at La Trobe University, tells me there is a “constellation of circumstances” impacting women getting bail, and these are gendered issues.

“There were a range of issues contributing to women’s criminalisation and remand, and these are gendered, particularly homelessness and poverty and they’re often linked to domestic and family violence, untreated health problems and addiction issues,” Russell says.

“Most concerningly we heard that if women were homeless or didn’t have stable and safe accommodation then that meant they would go into custody on remand. The prison then comes to serve as a homeless shelter because often they would be homeless or without safe housing because of domestic and family violence.”

More than half of all women in prison in Victoria are unsentenced, up from just 22 per cent in 2011. Many of these women eventually leave prison without ever actually receiving a sentence.

From 2009-2010 to 2019-20 the number of unsentenced Indigenous women in prison rose by 440 per cent.

Entrenching disadvantage

This is evidence that the Victorian government’s bail law reforms have had a “particularly egregious effect on women”, the researchers found.

“While ‘tough on crime’ reforms to bail laws in Australia have not ostensibly been targeted at women, women have, nonetheless, been profoundly affected by them, as indicated by their steadily climbing remand rates,” they said.

“Women’s prisons are typically filled with women that have arguably experienced some of the worst excesses of structural, institutional and interpersonal violence.”

According to several lawyers the researchers spoke with, homelessness is by far the main reason why women are remanded in custody.

“The use of remand in response to the perceived insecurity and instability borne of homelessness highlights how stringent bail laws are particularly ‘tough’ on disadvantaged and marginalised women,” the report said.

In 2019, 26 per cent of women entering prison in Victoria on remand had experienced homelessness or housing instability before doing so, although the researchers said this figure is likely higher in reality.

A common story told by the lawyers was that women were often experiencing homelessness due to family violence, which then meant they couldn’t access bail, so the cycle of disadvantage continued.

“The imprisonment of women reproduces profound gender and racial injustices,” they said.

“Strict bail laws are disproportionately affecting women, especially Aboroginal and Torres Strait Islander women, and entrenching their social disadvantage and exclusion.”

In 2020 Indigenous woman Veronica Nelson Walker died at Dame Phyllis Frost while she was on remand, after being refused bail for shoplifting charges.

“Women are routinely disadvantaged by virtue of gendered and racialised patterns of violence and inequality,” the researchers said.

“Our analysis shows how bail reforms intended to enhance community safety can instead entrench gender and racial inequalities. Halting and reversing the trend of increasing remand of women requires, at the very least, significantly rethinking and reworking bail laws to make imprisonment a last resort.”

The Victorian government has significantly reformed bail laws on two occasions in recent years, both after an act of violence by a man. But these reforms have most impacted low-level female and Indigenous offenders, sometimes having long-lasting effects.

“What we saw in the courts and what the lawyers told us was that the majority of women coming into the court, their alleged offences were pretty low level,” Russell says.

“They don’t represent a serious risk to community safety but they’re being dealt with as if they were as a result of the social marginalisation or the failure of the social systems that aren’t able to provide them that support or stability.

“They wind up in prison, and that’s the only institution that won’t turn people away. Bail laws have been tightened up to try to prioritise community safety but those being affected really don’t represent a risk to community safety at all.”

The criminal justice cycle

The researchers also found that Victoria’s punitive bail laws are impacting the behaviour of police in the state.

“Police really came under a lot of scrutiny after the Bourke Street tragedy and their role in failing to prevent that,” Russell says.

“It was definitely a common perception amongst lawyers that policing of bail became a lot tougher after that. The way police were interpreting the laws, the default had become to remand.”

There has been a drop in the number of women in prison in Victoria and an increase in those receiving bail due to the Covid-19 pandemic, with Magistrates taking the pandemic into consideration.

“The pandemic showed how it’s possible to reduce remand numbers and that it’s the safest option, and the best option, for a lot of people who are experiencing a lot of social marginalisation or disadvantage,” Russell says.

“As soon as you send someone to prison it dramatically increases the likelihood they’ll continue to cycle in and out of custody for years to come. For the public concerned about community safety then imprisonment is probably one of the least effective ways of enhancing community safety and security.”

The Human Rights Law Centre (HRLC) has launched a campaign for Victoria’s “broken” bail laws to be fixed.

“Victoria has some of Australia’s most onerous and dangerous bail laws, which regularly fail to uphold the most basic tenets of a fair and equal justice system,” HRLC legal director Meena Singh said.

“They are unfairly removing women from their families, and funnelling them into prisons to be warehoused on remand before they have been sentenced for a crime. The Andrews government must step up and fix Victoria’s broken bail laws to end the needless imprisonment of women.”