*** Aboriginal and Torres Strait Islander readers are advised this article discusses violence and people who have passed ***
Introduction by Croakey: The Victorian Labor Government has announced it is making moves to tighten bail laws that were wound back in 2023 following an inquest into the death of Veronica Nelson, an Aboriginal woman who died in custody after being remanded for shoplifting.
The Tough Bail Bill will be introduced into parliament by the Government next Tuesday.
Below, we publish a statement by Victorian Aboriginal Legal Service, urging the Government to reverse the decision and implement Poccum’s Law, her mother’s nickname for Veronica, in full.
Poccum’s Law calls for these reforms to bail reform:
1. Remove the presumption against bail.
2. Grant access to bail unless the prosecution shows that there is a specific and immediate risk to the safety of another person; a serious risk of interfering with a witness; or a demonstrable risk that the person will flee the jurisdiction.
3. Explicitly require that a person must not be remanded for an offence that is unlikely to result in a sentence of imprisonment.
4. Remove all bail offences (committing an indictable offence while on bail, breaching bail conditions and failure to answer bail).
Statement by Victorian Aboriginal Legal Service (VALS):
VALS condemns the Allan Government’s knee-jerk announcements that it wishes to return to the mistakes of the past and reintroduce the worst of Victoria’s previous bail laws.
Victoria’s previous bail laws were an ‘unmitigated disaster’ that directly lead to the tragic and preventable death of proud Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman Veronica Nelson, who died in a cold prison cell after her calls for medical help went unanswered.
Granting bail saves lives, and we call on the Government to implement Poccum’s Law in full, not revert to discriminatory bail laws.
Going back to failed bail laws is repeating the mistakes of the past and risking lives. Veronica would still be with us if her bail had been granted.
We know these rushed measures will lead to more Aboriginal people, especially women and children experiencing poverty, family violence and mental illness, being unnecessarily locked up. The impact on our Aboriginal communities will be profound and devastating.
As we saw after the disastrous bail changes in 2018, today’s announcement will see the majority of people in Victoria’s prisons sitting unsentenced, and there is once again a risk that many people will be detained for offences that will not lead to a prison sentence even if they are convicted.
Bringing back bail offences will only punish our most vulnerable for being unable to meet bail conditions like curfew for reasons of disadvantage.
Ignoring expert advice
Prior to the 2023 reforms, VALS acted for many young children in residential care who were repeatedly punished with harsh periods of remand for very minor offences and non-criminal behaviour.
In one instance, VALS supported a young person who had been in residential care since the age of 10. When he was 13 years old, he was remanded at a police station for not complying with a 10pm curfew. He spent two nights there despite not having been charged with any offence. Despite not being a risk to society, his bail was refused. This child was continually kept in custody, traumatised and alone, for no reason.
Many of the positive bail reforms that the Aboriginal sector have fought so hard for over many years for the benefit of all Victorians are being scrapped.
The Allan Government has chosen yet again to ignore the expert advice from ACCOs, the Aboriginal Justice Caucus and the legal sector to act on evidence, invest in preventative, early intervention, diversion and bail supports and most critically to invest in supports that address poverty, housing and family violence to create a safer Victoria now and into the future.
Everyone should feel safe in their home, but these measures will not achieve that. There is clear evidence that simply locking up extremely disadvantaged community members does little to deter criminal behaviour, with Victoria’s recidivism rate at 46 percent.
Instead, prison traps especially vulnerable people in cycles of disadvantage and make it more likely that they will reoffend. This is especially so for children and is the reason why imprisonment must always be a measure of last resort for children and young people.
In VALS’ practice experience, access to bail means we can provide wrap around intensive supports to people and this leads to lower rates of recidivism.
What changes criminal behaviour, and what makes communities and victims safe, is investment in the social determinants of crime like access to housing, employment, mental health, substance abuse and family violence services. There needs to be adequate investment in diversion and alternative pathways.
Yet the Government has chosen to cut funding to so many of these vital supports. The Aboriginal community knows what works best for us, and the government is choosing to ignore us.
Our dedicated criminal youth practice, Balit Ngulu, supported an 18-year-old young person who was remanded for the first time in his life in December last year. He has no prior criminal history and had no prior Youth Justice involvement. He was granted bail after a very long bail application that could have resulted in him being refused bail.
Because of the 2023 bail reforms, the presiding judge was able to take in a more holistic approach in considering bail including his strong connection to his culture and community and the supports he had available to him. Now on bail he has not had any further alleged offending since and has engaged incredibly well with Youth Justice supervised bail supports.
This has meant he’s been able to maintain his full-time work and connection with his family.
With the Government’s announcement today, this young person would have been remanded, and his life trajectory would look very different.
Significant burden
VALS seeks clarity from the Government as to whether this announcement will result in support for Aboriginal Legal Services to mitigate the harms this Government is so determined to inflict.
As Dr Mundy’s recommendation in the NLAP Review Final Report laid out where government undertakes law reform that is expected to change demand in legal assistance, they should be responsible for funding that expanded need.
Looking at the outcome since the NSW bail reform was introduced last year, the numbers of Aboriginal young people and adults being held on remand have skyrocketed. This will be one of the consequences on the service deliver sector, and place significant burden on our legal practices.
These changes are designed to abate alarmist rhetoric driven by the media. They are not aimed at providing the necessary supports to increase community safety.
All they will achieve in ensuring the cycle of incarceration continues, that prisons continue to grow their profit margin, that we continue to buy into government rhetoric that the legislative settings are wrong rather than making them accountable for their lack of investment in diversion and alternative pathways.
It is one that moves this state backward, one that ensures there is no justice and no peace in this state for Aboriginal Communities.
NO JUSTICE, NO PEACE.
Nerita Waight, CEO of the Victorian Aboriginal Legal Service said:
“This Government doesn’t learn from their mistakes, rather they go out of their way to repeat them. You start to wonder after failed policy after failed policy is it really mistake or rather an active decision to pursue the colonial agenda, to lock our people up, to hold those at the mercy of the system responsible for their own failures to invest in adequate diversion and alternative pathways.
“The Victorian Government has prioritised their political agenda and votes, they have chosen to increase the profit margins of prisons rather than invest in the increasing the safety of Victorians by addressing the drivers of offending. They have prioritised making the law the scapegoat rather than tackling the real problems.
“It is shameful that the Victorian Government is looking to NSW and Queensland for what should be implemented, when their success markers are simply how many people are being held on remand rather than addressing the driving factors of offending. Locking people up should never be a measure of success, it is in fact an indication of failure, as evidenced by the National Agreement on Closing the Gap and the Aboriginal Justice Agreement. This Government prizes possessions over lives.”
The data referenced in the media release is from the Sentencing Advisory Council of Victoria.
See Croakey’s archive of articles on justice reinvestment.
