2.63 Police discretion plays a key role in the return to prison of people who breach their bail conditions. Where a person released on bail has failed to comply with their bail conditions police can take the person back to court, where the court decides whether to continue to bail them or to hold the person on remand.
2.64 A NSW study conducted by the director of NSW BOCSAR on the breach rate of Aboriginal and Torres Strait Islander accused persons found that the rate was more than twice that of non-Indigenous breach of court orders. The authors noted that the
difference might reflect a greater proclivity on the part of Indigenous defendants/offenders to breach court orders. It might, on the other hand, reflect either more intense police scrutiny of Indigenous defendants/offenders and/or a greater willingness on the part of police to take action against Indigenous Defendants/offenders who breach court orders.
2.65 In NSW, for example, where police believe on reasonable grounds that a person has failed to comply or is about to fail to comply with the conditions of their release, police can:
take no action;
issue a warning;
issue a notice to appear before the court;
issue a Court Attendance Notice if they consider the failure is also an offence; or
arrest the person without warrant (or apply for a warrant) and take person to court or bail authority.
2.66 In deciding on an appropriate response, police are to consider the nature of the failure or threatened failure to comply; any reasonable excuse; the personal attributes and circumstances of the person and whether an alternative course of action to arrest is open to them.
2.67 The 2016 Senate report, Inquiry into Aboriginal and Torres Strait Islander Experiences of Law Enforcement and Justice Services, discussed breach of orders, including breach of bail conditions. It reported on stakeholder experiences and views of police practice. Stakeholders suggested that Aboriginal and Torres Strait Islander peoples subject to court orders were targeted by police, and attributed the growth in the incarceration rates of Aboriginal and Torres Strait Islander peoples and contact with the criminal justice system to this practice. Specifically, the report noted the effect of the Suspect Targeting Management Policy of the NSW Police Force, a police intelligence tool that triages offenders into high or medium risk categories under which high risk offenders are subject to ‘targeted policing’ and additional surveillance.
2.68 The Redfern Legal Centre submitted to the Senate Inquiry that police had been targeting people with long criminal records for bail compliance checks without distinguishing between offenders with mostly minor previous offences, and those with a more serious level of criminality. Statistics produced by the Redfern Legal Centre indicated a significant increase in bail compliance checks from 2005 and 2010.
2.69 This does not reflect the entire approach taken by police in NSW. For example, in Bourke NSW, the recently introduced ‘breach reduction strategy’ relies on positive police involvement. The strategy includes making sure a warning is issued for technical breaches of bail, and that police contact community (via the Community Hub) when they believe that an Aboriginal and Torres Strait Islander person may not comply and may be in need of support services.
2.70 The ALRC recognises the need for pre-emptive policing. Police have a difficult job, and maintaining a close watch on known offenders may prevent crime. The ALRC is, however, encouraged by the multitude of police programs that provide for engagement with Aboriginal and Torres Strait Islander peoples nationwide (see Chapter 12) and suggests that, regarding technical breaches of bail, there may be a balance between surveillance and engagement.
Weatherburn and Snowball, above n 21, 57.
Bail Act 2013 (NSW) s 77(1).
Bail Act 2013 (NSW) s 77(3).
Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 80–82.
Sarah Hopkins and Eleanor Holden, ‘Justice Reinvestment and Over-Policing: A Conversation with Sarah Hopkins’ (2016) 25 Human Rights Defender 22, 23. Justice Reinvestment is discussed in ch 13.