Proposal 2–2 State and territory governments should work with peak Aboriginal and Torres Strait Islander organisations to identify service gaps and develop the infrastructure required to provide culturally appropriate bail support and diversion options where needed.
2.54 Stakeholders in this Inquiry have indicated that more options are needed to support Aboriginal and Torres Strait Islander persons to be granted bail and to comply with bail conditions. A provision requiring consideration of culture alone may not be enough to facilitate a grant of bail where the person still requires support. Aboriginal and Torres Strait Islander peoples may still be refused bail because they lack access to appropriate accommodation or have little to no support in the community—rendering them a ‘bail risk’. There are cases where—with or without the provision proposed above—if appropriate supports were available, the person would not be incarcerated.
2.55 Appropriate support generally takes three forms: services that can support Aboriginal and Torres Strait Islander peoples to be granted bail and meet the conditions of their release; mainstream bail diversion programs; and culturally appropriate programs aimed at addressing offending behaviour.
2.56 Services that can support Aboriginal and Torres Strait Islander peoples to be granted bail and meet the conditions of their release usually constitute informal networks or services delivered by non-government organisations. For example, in Queensland, Community Justice Groups may appear with the person in court, and provide informal support and link ups to services for Aboriginal and Torres Strait Islander peoples released on bail. This type of support can be especially critical for women who may be at risk of losing children or accommodation if refused bail and held on remand. Examples of networked support services specifically for women include theMiranda Project in Sydney and Sisters Inside in Brisbane.
2.57 Aboriginal and Torres Strait Islander persons can also be diverted into mainstream bail diversion programs from the Local or Magistrates Court. In Victoria, for instance, the Court Integrated Service Program (CISP) is available on referral from the Magistrates’ Court regardless of the entry of a guilty plea, and includes the Koori Liaison Officer program. CISP provides case management and entry into services and accommodation for all jurisdictions of the Magistrates’ Court.
2.58 Other mainstream bail diversion programs from the Local or Magistrates Court can provide services for Aboriginal and Torres Strait Islander peoples. However, these are not necessarily developed to be culturally appropriate or culturally safe. This includes drug and alcohol intervention bail support programs; and early mental health interventions.
2.59 Aboriginal and Torres Strait Islander peoples who enter a guilty plea in the Local or Magistrates Court may also be able to enter culturally appropriate programs that aim to address offending behaviour. These include the Balund-a (Tabulam) diversion program in northern NSW, where staff work with Aboriginal and Torres Strait Islander Elders to provide cultural programs to male Aboriginal offenders in a rural setting.
2.60 There are also specific bail diversion programs for Aboriginal and Torres Strait Islander peoples with alcohol dependencies, such as the Queensland Indigenous Alcohol Diversion Program, which may be entered pre or post the entering of a plea. The Western Australia Indigenous Diversion Program is available on referral for drug dependent peoples who have entered a plea of guilty in some regional areas in Western Australia. This program is available to people who would have been granted bail, and would otherwise be expecting a fine or community-based order on sentencing.
2.61 Stakeholders in this Inquiry have pointed to a need for the development of organisations that would help Aboriginal and Torres Strait Islander peoples show the stability needed to be granted bail, and that would then provide assistance to meet the conditions of the person’s release. Other stakeholders have pointed to a lack of bail diversion programs that have been developed with Aboriginal and Torres Strait Islander communities and Elders, which elevate culture while addressing other criminogenic needs.
2.62 The ALRC proposes that state and territory governments should work with Aboriginal and Torres Strait Islander communities to identify areas of need, and develop infrastructure required to support Aboriginal and Torres Strait Islander peoples reach and retain bail. The ALRC welcomes submissions on what service provision is required, and on best practice approaches to bail diversion for Aboriginal and Torres Strait Islander peoples.
Human Rights Law Centre and Change the Record Coalition, above n 53.
Sanderson, Mazerolle and Anderson-Bond, above n 21, 205.
Human Rights Law Centre and Change the Record Coalition, above n 53, 4.
See, eg, Magistrates’ Court of Victoria, Court Integrated Services Program (CISP) <www.magistratescourt.vic.gov.au>. See ch 11.
See, eg, ACT Department of Health, diversion Services—Court Alcohol and Drug Assessment Service <http://www.health.act.gov.au/our-services/alcohol-and-other-drugs/diversion-services>; NSW Department of Justice, Magistrates Early Referral Into Treatment <http://www.merit.justice.nsw.gov.au/>; Queensland Courts, Magistrates Early Referral Into Treatment <http://www.courts.qld.gov.au/services/court-programs/queensland-magistrates-early-referral-into-treatment>; Magistrates’ Court of Victoria, CREDIT Bail Support Program <https://www.magistratescourt.vic.gov.au/court-support-services/credit-bail-support-program>.
Entry to this program is via the Crimes (Sentencing Procedure) Act 1999 (NSW) s 11, which allows for deferral of sentencing for rehabilitation and requires that the person be found guilty and then bailed under this section before entry. See also ch 7.
See Government of Western Australia, Mental Health Commission, Indigenous Diversion Program <https://www.mhc.wa.gov.au/media/1565/idp-indigenous-brochure-final-2016.pdf>.