The operation of bail laws and legal frameworks
2.8 A person can be held on remand following charge because they did not apply for bail; the bail authority refused bail; or because a person breached a condition of bail.
2.9 Bail laws are complex and vary between states and territories. A general overview of how bail laws operate is provided below.
2.10 Bail can be determined at different times by police, magistrates, judges and bail justices (in some jurisdictions). These decision makers are generally termed ‘bail authorities’. Questions of bail first arise when a person is charged by police with an offence. Police can release the person with a Court Attendance Notice (or equivalent) to attend court, or they can release the person on bail. It is always a condition of police bail that the person attends court; and other conditions may also be imposed.
2.11 Where police refuse to release the person or to grant bail, the police must bring the person before the Local or Magistrates Court as soon as possible, where the accused person can apply to the court for bail.
2.12 A statutory presumption against bail attaches to some offences. These generally include serious indictable sexual and personal violence offences, and weapon and terrorism related offending.
2.13 When a person successfully ‘shows cause’ or reasons for bail, or when show cause is not required, the bail authority considers whether an accused person would pose an ‘unacceptable risk’ if released on bail, and, if so, whether conditions could mitigate the risk. In making this bail determination, the bail authority generally considers whether a person is likely to appear in court to answer bail; interfere with witnesses; harm themselves or others; or whether there is a risk of reoffending. These risks are termed ‘bail concerns’ in some jurisdictions.
2.14 The type of matters that can be considered when assessing bail concerns are prescribed in some jurisdictions. In New South Wales (NSW), for example, the type of matters that can be taken into account are prescribed by the Bail Act 2013 (NSW), and include, among other things: the accused person’s background, including criminal history, circumstances and community ties; any previous history of compliance with court orders; the nature and seriousness of the offence; and any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander person, or having cognitive or mental health impairments (discussed below).
2.15 Bail authorities can impose conditions that are ‘reasonably necessary’ to address the bail concern. Any conditions imposed must be ‘reasonable and proportionate’ to the offence, and be no more onerous than necessary to address the bail concern. Bail conditions can require the person to do, or refrain from doing, something—such as to report to police; live at a specific address; not associate with certain people; or to obey a curfew. Bail conditions can also enforce a condition of release, for example compel a person to undergo drug testing.
The impact on Aboriginal and Torres Strait Islander peoples
2.16 In 2016, the national Aboriginal and Torres Strait Islander remand prisoner population accounted for 30% (3,221) of Aboriginal and Torres Strait Islander prisoners and 27% of all prisoners held on remand. This is a growing concern. For example, the NSW Bureau of Crime Statistics and Research (NSW BOCSAR) reported that the number of Aboriginal and Torres Strait Islander prisoners on remand grew in NSW by 238% between 2001 and 2015. In NSW, the highest growth offending category was in justice procedure offences.
2.17 In 2016, national statistics illustrated that Aboriginal and Torres Strait Islander peoples were most likely to be held on remand when accused of offences categorised as acts intended to cause injury (42% of the Aboriginal and Torres Strait Islander remand population); unlawful entry with intent (13%); and sexual assault (7%). These categories, particularly acts intended to cause injury, are broadly defined and can include low level instances of offending.
2.18 In NSW, Aboriginal and Torres Strait Islander males spent an average of 44 days on remand, while it was 36 days for Aboriginal and Torres Strait Islander females. Around 40% of Aboriginal and Torres Strait Islander defendants who were held on remand at their final court appearance in NSW in 2015 did not receive a custodial penalty on conviction.
2.19 Aboriginal and Torres Strait Islander women are a fast growing group within the remand population. For example, the Inspector of Custodial Services in Western Australia reported that Western Australia had seen a 150% growth in Aboriginal and Torres Strait Islander women being held on remand from 2009 to 2016, describing the statistic as ‘especially sharp and alarming’. As discussed in Chapter 5, being held in prison for even a short time can be disruptive and destabilising, especially for women where the ‘social as well as the financial costs of these short term remands can be very high’.
Drivers of over-representation on remand
2.20 Aboriginal and Torres Strait Islander peoples are less likely to be granted bail than non-Indigenous persons. This has been attributed to the likelihood of accused Aboriginal and Torres Strait Islander peoples having prior convictions—Aboriginal and Torres Strait Islander peoples are up to twice as likely as non-Indigenous accused people to have 10 prior convictions—and are also more likely to have prior convictions for breach of a previous court order.
2.21 The Victorian Supreme Court appeal matter of Re Mitchell  VSC 59 provides an example of how prior low level offending can affect bail determinations for Aboriginal and Torres Strait Islander peoples. Mitchell, a pregnant 22-year-old Aboriginal single mother, had been charged with offences related to begging, and obtaining a ‘financial advantage by deception’ because she had been travelling on the train on a children’s ticket. Mitchell was refused bail at the Magistrates’ Court of Victoria because it was found that, due to similar past offending, Mitchell represented an unacceptable risk of committing further offences. Mitchell had previous convictions for shoplifting, burglary, obtaining property by deception and breach of a Community Corrections Order. In determining the appeal, theSupreme Court held that the magistrate’s conclusion that Mitchell presented an unacceptable risk of reoffending was ‘unassailable’. Nonetheless, at the time of the appeal determination, Mitchell had spent seven weeks in prison on remand—longer than any sentence she would have received for the charges. It was likely that, if not bailed, she would spend up to nine months on remand before trial. The Supreme Court granted bail, with reference to the requirement to consider Aboriginality in s 3A of the Bail Act 1977 (Vic), noting the potential to over-police Aboriginal and Torres Strait Islander peoples, and stating that to charge Mitchell with obtaining financial advantage by deception for travelling on a child’s ticket was ‘singularly inappropriate’.
2.22 The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) found that prior failures to appear at court, and the lack of a fixed residential address and stable employment contributed to ‘Aboriginal disadvantage’ in the bail process. The RCIADIC further published a submission by the Queensland Attorney-General’s Department, acknowledging that high rates of ‘mental [and] physical disability, life style, communication difficulties [and] lack of education’ can lead to Aboriginal and Torres Strait Islander peoples being held on remand, not because they are attempting to ‘escape justice’, but merely because of the particular difficulties they can face in appearing at a court at an ‘appointed place or time’.
2.23 Language barriers have been identified as another factor which can result in Aboriginal and Torres Strait Islander peoples being denied release on bail.
2.24 The observations of the RCIADIC were repeated in evidence by the Chief Justice of the Supreme Court of Western Australia to the 2016 Inquiry intoAboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services, where Martin CJ also cited mental health issues as a key reason why Aboriginal and Torres Strait Islander peoples were often refused bail.
Breach of conditions of bail
2.25 When bail is granted to Aboriginal and Torres Strait Islander peoples, the conditions attached can conflict with an Aboriginal and Torres Strait Islander person’s cultural obligations, increasing the risk of breach and consequent imprisonment. Curfews, exclusion zones and non-association orders can ‘restrict contact with family networks and prevent Aboriginal people from maintaining relationships, performing responsibilities such as taking care of elderly relatives or attending funerals’. In the 2011 report, Exploring Bail and Remand Experiences for Indigenous Queenslanders, it was observed that compliance with ‘standard’ conditions (curfews, resident restrictions, reporting requirements and alcohol bans) were difficult for some Aboriginal and Torres Strait Islander peoples. The report concluded that
[f]ailure to comply with these conditions along with the stringent policing of minor breaches in some locations increased the risk of custodial remand for Indigenous defendants, with court delays then contributing to the length of time defendants remained in remand.
2.26 The NSW Law Reform Commission (NSWLRC) in their 2012 report on bail pointed to transient culture as a further example of how Aboriginal and Torres Strait Islander culture can conflict with standard bail conditions:
For many Aboriginal people, frequent short-term mobility is a normal part of life. People may travel for a few days or a few months, usually to visit family, but also to attend funerals, cultural or sporting festivals or to access health services. Short-term travel is most common among young adults, with older people more firmly associated with a homeland and serving as a focus or base for others, particularly children. Bail processes requiring a fixed address and frequent reporting to a particular police station may conflict with these cultural practices.
2.27 The NSWLRC also noted that Aboriginal and Torres Strait Islander peoples may have strong historical and cultural ties to particular locations. It found that bail conditions which restrict access to ‘place’ can have serious impacts on the person.
2.28 For this reason, the NSW Bench Book for the judiciary advised that it may be ‘less appropriate to attach a condition for an Aboriginal person that the person leave town, than it would be to do so for a non-Aboriginal person’. The Bench Book clearly articulated the problem:
Conditions of bail can often have a disproportionately stringent impact on Aboriginal people as, particularly in rural areas, the conditions may conflict with family and cultural obligations. Where residence or banning conditions are a condition of bail, the person released on bail will not have access to support from the community in which he or she grew up.
2.29 There are also practical considerations, especially for Aboriginal and Torres Strait Islander peoples in regional and remote communities where public transport infrastructure is lacking. Remoteness can affect a person’s ability to meet reporting requirements. Aboriginal and Torres Strait Islander people may not have driver licences, registered motor vehicles (or a car at all), or access to licensed drivers. In such cases, place and circumstance can severely limit an Aboriginal and Torres Strait Islander person from complying with certain bail conditions.
Bail provisions that can take culture into account
2.30 Stakeholders in this Inquiry have suggested in preliminary consultations that bail authorities should be required to take into account cultural considerations when making bail determinations for Aboriginal and Torres Strait Islander peoples, and that cultural considerations be given appropriate weight. It has been suggested that the court should be required to weigh cultural, family and community obligations along with other matters when assessing ‘unacceptable risk’, including when determining bail conditions.
2.31 Provisions of this type have been introduced to varying degrees in the NT, Queensland and Victoria. In NSW, there is a requirement to consider the vulnerability of Aboriginal and Torres Strait Islander accused peoples. These are briefly outlined below.
New South Wales
2.32 In NSW, ss 18(a) and (k) of the Bail Act 2013 (NSW) require the bail authority to consider, among other things, ‘community ties’ and any ‘special vulnerability or needs the person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment’. The ‘special vulnerability’ provision appears to have been introduced into the previous Bail Act 1978 (NSW) to reinforce the notion of prison as a last resort for these groups. The ALRC has heard that this provision is rarely used to aid an accused Aboriginal and Torres Strait Islander person reach bail.
2.33 The reference to ‘community ties’ in s 18(a) is not specific to Aboriginal and Torres Strait Islander peoples. It may, however, have particular relevance to Aboriginal and Torres Strait Islander peoples and be derived from the previous Bail Act 1992 (NSW), which directed courts to give consideration to the
person’s background and community ties, as indicated (in the case of an Aboriginal person or a Torres Strait Islander) by the person’s ties to extended family and kinship and other traditional ties to place and the person’s prior criminal record (if known).
2.34 The Bail Act (NT) requires bail authorities to consider, among other things, any ‘needs relating to the person’s cultural background, including any ties to extended family or place, or any other cultural obligation’.
2.35 The NT provision commenced in 2015 following a review of the Bail Act (NT). Stakeholders in that inquiry supported the NSWLRC’s recommendation that bail authorities consider matters ‘associated with Aboriginal or Torres Strait Islander identity, culture and heritage, including connections with extended family and traditional ties to place’.
2.36 The Queensland provision permits the court to consider, among other things, evidence from a Community Justice Group:
16 Refusal of bail
(2)(e) if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about—
(i) the defendant’s relationship to the defendant’s community; or
(ii) any cultural considerations; or
(iii) any considerations relating to programs and services in which the community justice group participates.
2.37 Community Justice Groups were established in 1993 in North Queensland. There are now up to 50 groups operating throughout Queensland. Community Justice Groups consist of Elders, Traditional Owners, and other respected community members who come together to: make cultural submissions to Magistrates Courts on behalf of accused/defendants; identify appropriate treatment and support programs; and provide assistances to Aboriginal and Torres Strait Islander peoples as they progress through the Murri Court.
2.38 The ALRC welcomes information on the practical application of the provisions operating in NSW, the NT and Queensland, and any views on whether these provisions need to be strengthened in order to meet any stated objectives.
2.39 Victoria is the only state or territory to have introduced a standalone provision requiring the court to take culture into account:
3A Determination in relation to an Aboriginal person
In making a determination under this Act in relation to an Aboriginal person, a court must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including—
(a) the person’s cultural background, including the person’s ties to extended family or place; and
(b) any other relevant cultural issue or obligation.
2.40 This provision goes further than those provisions in NSW and the NT. It places a different emphasis on the evidence than the Queensland provision, which requires a submission from a Community Justice Group.
2.41 The provision was introduced in 2010 following a Victorian Law Reform Commission (VLRC) report on bail. The VLRC recommended that bail authorities be required to take into account cultural factors and community expectations to prevent Aboriginal and Torres Strait Islander peoples from being remanded unnecessarily or bailed subject to inappropriate conditions.
2.42 When introduced into Parliament, the then Attorney-General of Victoria stated that the provision would operate so that the ‘decision-maker would be required to take into account matters such as an obligation to attend a community funeral or participate in community cultural activities when imposing conditions of bail on an accused who is Aboriginal’. Courts have also interpreted the provision as permitting consideration of the over-representation of Aboriginal and Torres Strait Islander peoples in prison and policing practices. The Supreme Court of Victoria has, however, stressed that the provision does not operate to grant bail to an Aboriginal and Torres Strait Islander applicant who poses an unacceptable risk to community safety.
2.43 Section 3A was supported in the 2017 Bail Review, which reported widespread stakeholder support of the provision in Victoria.
Queensland and Victoria.
See, eg, Bail Act 1977 (Vic) 5; Bail Act 1982 (WA) s 28.
Bail Act 1992 (ACT) s 17; Bail Act 2013 (NSW) s 41; Bail Act (NT) s 33; Bail Act 1980 (Qld) s 19B; Bail Act 1985 (SA) s 14; Bail Act 1994 (Tas) s 11; Bail Act 1977 (Vic) s 4; Bail Act 1982 (WA) s 5.
See, eg, Bail Act 2013 (NSW) div 1A s 16B; Bail Act (NT) s 7A; Bail Act 1980 (Qld) s 16(3).
See, eg, Bail Act 2013 (NSW) s 17; Bail Act 1980 (Qld) s 16.
See, eg, Bail Act 2013 (NSW) s 17.
Bail Act 2013 (NSW) s 18.
See, eg, Bail Act 2013 (NSW) s 20.
See, eg, Bail Act 2013 (NSW) div 3; Bail Act 1980 (Qld) s 11.
Australian Bureau of Statistics, above n 1, table 8.
Don Weatherburn and Stephanie Ramsay, ‘What’s Causing the Growth in Indigenous Imprisonment in NSW?’ (Bureau Brief Issue Paper No 118, NSW Bureau of Crime Statistics and Research, 2016) 8. See also ch 7.
Australian Bureau of Statistics, above n 1, table 8.
NSW Bureau of Crime Statistics and Research, New South Wales Custody Statistics Quarterly Update March 2017 (2017) [2.3.2].
Don Weatherburn and Stephanie Ramsay, above n 14, 8.
Office of the Inspector of Custodial Services, Western Australia’s Rapidly Increasing Remand Population (2015) 2.
Ibid. Also see ch 9.
See, eg, Lucy Snowball et al, Bail Presumptions and Risk of Bail Refusal: An Analysis of the NSW Bail Act (NSW Bureau of Crime Statistics and Research) 5.
Don Weatherburn and Lucy Snowball, ‘The Effect of Indigenous Status on the Risk of Bail Refusal’ (2012) 36(1) Criminal Law Journal 50, 56. Aboriginal and Torres Strait Islander defendants are also more than twice as likely to have previously been convicted of a breach offence (See ch 7). See also Jennifer Sanderson, Paul Mazerolle and Travis Anderson-Bond, ‘Exploring Bail and Remand Experiences for Indigenous Queenslanders (2011)’ (Final Report, Griffith University, 2011) 4.
Re Mitchell  VSC 59 (8 February 2013).
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 3 [21.4.15]; NSW Law Reform Commission, Bail, Report No 133 (2012) [11.59].
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 3 51.
Ibid. See ch 11 for a broader discussion on issues impacting on access to justice for Aboriginal and Torres Strait Islander peoples.
Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) [5.64].
NSW Law Reform Commission, Bail, Report No 133 (2012) [11.54].
Sanderson, Mazerolle and Anderson-Bond, above n 21, 3.
NSW Law Reform Commission, Bail, Report No 133 (2012) [11.54].
Judicial Commission of New South Wales, NSW Sentencing Bench Book [2.3.2].
NSW Law Reform Commission, Bail, Report No 133 (2012) [11.53].
A similar list of considerations with the same subsection as s 18(k) was recommended for Victoria in 2017 to operate in conjunction with s 3A: Paul Coghlan, Bail Review: First Advice to the Victorian Government (2017) 44, rec 5.
New South Wales, Parliamentary Debates, Legislative Assembly, 20 March 2002, 818–20 (Bob Debus).
Bail Act 1982 (NSW) s 32(1)(a)(ia) of the original Act; note also Bail Act 1992 (ACT) s 22(2)(b).
Bail Act (NT) s 24(1)(B)(iiic); Crimes Act 1914 (Cth) s 15AB: The operation of this provision is tempered by a prohibition under Commonwealth law to consider any form of customary law or cultural practice as a reason for lessening or increasing the seriousness of the offending.
Department of Attorney-General and Justice, Exposure Draft Bail Amendment Bill 2014: Discussion Paper (2014). See, eg, ‘North Australian Aboriginal Justice Agency, Submission to the Northern Territory Government, Review of the Bail Act (NT) (March 2013)’; Northern Territory Law Society, Submission to the Northern Territory Government, Review of the Bail Act (NT) (4 April 2013); NSW Law Reform Commission, Bail, Report No 133 (2012); Department of the Attorney General and Justice (NT), Consultation Results Report: Consultation Regarding Application in the Lower Courts of Recorded Statement Protections for Vulnerable Witnesses: Section 21B of the Evidence Act (2014).
Bail Act 1980 (Qld) s 16(2)(e), see also s 15(f).
See, eg, Queensland Courts, Community Justice Group Program <https://goo.gl/RLPpnW>. Community Justice Groups are also referred to in ch 3 regarding sentencing. See also ch 11.
Bail Act 1977 (Vic) s 3A.
Bail Amendment Act 2010 (Vic).
Victorian Law Reform Commission, Review of the Bail Act: Final Report (2007) 180. See also DPP v S E  VSC 13 (31 January 2017) .
Victoria, Parliamentary Debates, Legislative Council, 29 July 2010, 3500–3503 (John Lenders).
Re Mitchell  VSC 59 (8 February 2013) .
See, eg, DPP v S E  VSC 13 (31 January 2017) ; R v Chafer-Smith  VSC 51 (21 February 2014) (T Forrest J) –; DPP v Hume  VSC 695 (8 December 2015) (Hollingworth J).
Paul Coghlan, Bail Review: First Advice to the Victorian Government (2017) [4.82].