Proposal 2–1 The Bail Act 1977 (Vic) has a standalone provision that requires bail authorities to consider any ‘issues that arise due to the person’s Aboriginality’, including cultural background, ties to family and place, and cultural obligations. This consideration is in addition to any other requirements of the Bail Act.
Other state and territory bail legislation should adopt a similar provision.
As with all other bail considerations, the requirement to consider issues that arise due to the person’s Aboriginality would not supersede considerations of community safety.
2.44 As outlined above, Aboriginal and Torres Strait Islander peoples may be disadvantaged in bail determinations and subject to bail conditions that have potential to conflict with cultural obligations and increase the likelihood of breach. Breaching bail can result in the person being remanded in custody, and can also influence any future bail determinations against that person.
2.45 There have been calls to introduce a provision similar to that in Victoria in other jurisdictions. In 2012, the NSWLRC recommended the introduction of a provision that would require consideration in bail determinations to be given to matters ‘associated with Aboriginal or Torres Strait Islander identity, culture and heritage, including connections with extended family and traditional ties to place.’ It suggested that bail authorities also consider the ‘strength or otherwise of the person’s family and community ties, including employment, business and other associations, extended family and kinship ties and the traditional ties of Aboriginal people and Torres Strait Islanders’.
2.46 A 2017 report into the over-representation of Aboriginal and Torres Strait Islander women in prison also recommended amendments to states and territory bail legislation to ensure that the historical and systemic factors contributing to the over imprisonment of Aboriginal and Torres Strait Islander peoples be taken into account in bail decisions. It also recommended that consideration be given to the impact of imprisonment—including remand—on dependent children. The report noted that bail support and diversionary options linked with accommodation, designed by and for Aboriginal and Torres Strait Islander women, were also required if such legislation is to have its intended effect of keeping Aboriginal and Torres Strait Islander women out of jail on remand.
2.47 The ALRC proposes that state and territory bail legislation should be amended to reflect the Victorian provision. This would require bail authorities to take into account any historical disadvantage, cultural practice and obligations, and community supports when assessing the risk posed by an Aboriginal and Torres Strait Islander accused person. This may decrease the number of Aboriginal and Torres Strait Islander people accused of low level offending who are held on remand.
2.48 Courts can, however, already consider Aboriginality when making bail determinations. Legal frameworks are in place, including existing sub-sections that require the background of the person to be taken into account; and bench books and practice notes that direct the court to take into account historical context, and cultural practices and obligations in bail determinations. For example, the Western Australian Bench Book (Aboriginal) suggests that, under the ‘exceptional circumstances’ requirement for bail in serious cases, the circumstances of an Aboriginal accused person may constitute ‘exceptional circumstances’.
2.49 In NSW, the Bench Book suggests that decision makers
[a]ssess bail and bail conditions not just based on police views but also on the views of the defence and respected members of the local Aboriginal community and/or the Local Court Aboriginal Client Service Specialist (if there is one) about the particular person’s ties to the community and likelihood of absconding, and about culturally-appropriate options in relation to bail conditions. Community-based support, for example, might provide as viable an option as family-based support.
2.50 This approach has been reflected in bail determinations. For example, in R v Brown  NSWCCA 178, the NSW Court of Criminal Appeal noted that
extended family and kinship, and other traditional ties, warrant significant consideration in the determination of whether or not to grant bail. In the cases of Aboriginal accused, particularly where the applicant for bail is young, alternative culturally appropriate supervision, where available, (with an emphasis on cultural awareness and overcoming the renowned antisocial effects of discrimination and/or an abused or disempowered upbringing), should be explored as a preferred option to a remand in gaol.
2.51 More recently, the Supreme Court of NSW found that lengthy periods of remand and separation from family may perpetuate the cycle of disadvantage, which could constitute ‘cause’ under show cause provisions. It also observed that bail conditions should be crafted so as to break that cycle:
During that period the applicant would in all likelihood see very little of the child if bail is refused. That is a factor which seems to me to be likely to perpetuate the cycle of disadvantage and deprivation notoriously faced in indigenous communities and, as a matter of evidence in the material before me, specifically faced in the family of this applicant. If the Court can reasonably impose conditions which are calculated to break that cycle, in my view it should. That is a strong factor in my finding cause shown.
2.52 Nonetheless, the ALRC considers there to be benefits to prescribing these approaches in legislation. The introduction of a discrete provision, requiring the court to consider cultural practice and obligations in bail legislation should:
enable the bail authority to consider community supports, the person’s role in community and cultural obligations when determining risk. It permits these considerations to be balanced against the lack of otherwise permanent residency, employment and immediate family supports;
require the court to consider any previous offending—especially low level offending—in context, particularly where the person has experienced historical and continuing disadvantage, as in Victoria;
lower the likelihood of bail authorities imposing inappropriate conditions that ultimately ‘set the person up to fail’;
decrease the risk that consideration of cultural practice and obligations by bail authorities will be applied inconsistently; and
reduce the number of Aboriginal and Torres Strait Islander peoples in prison on remand—especially critical for women on remand, who may lose accommodation and custody of their children while in prison.
2.53 The ALRC welcomes submissions on the potential impact such a provision may have on bail determinations and the Aboriginal and Torres Strait Islander remand population.
NSW Law Reform Commission, Bail, Report No 133 (2012) 65, Rec 11.3.
Ibid rec 10.4; Law Reform Commission of Western Australia, Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture—Final Report (2006) recs29–34.
Human Rights Law Centre and Change the Record Coalition, Over-Represented and Overlooked: The Crisis of Aboriginal and Torres Strait Islander Women’s Growing Over-Imprisonment (2017) rec 15.
Stephanie Fryer-Smith, Aboriginal Benchbook for Western Australia Courts (at 2nd), [6.1.5]. Unchango v R (Unreported, WASC, 12 June 1998).
Judicial Commission of New South Wales, above n 36, [2.3.2].
R v Michael John Brown  NSWCCA 178 (2 August 2013) .
R v Alchin (Unreported, NSWSC, 16 February 2015) .
See, eg, R v Chafer-Smith  VSC 51 (21 February 2014).
See chs 5, 9.