2.1 One third of Aboriginal and Torres Strait Islander peoples in prison are held on remand, while awaiting trial or sentence. A large proportion of Aboriginal and Torres Strait Islander peoples held on remand do not receive a custodial sentence upon conviction, or may be sentenced to time served while on remand. This suggests that many Aboriginal and Torres Strait Islander prisoners may be held on remand for otherwise low level offending.
2.2 The Terms of Reference for this Inquiry ask the ALRC to have regard to laws and legal frameworks that contribute to the incarceration of Aboriginal and Torres Strait Islander peoples, including bail law and its impact on the remand population.
2.3 Irregular employment and the lack of secure accommodation can disadvantage some accused Aboriginal and Torres Strait Islander people when applying for bail. Furthermore, when bail is granted, cultural obligations to attend funerals or take care of family may conflict with commonly issued bail conditions—such as curfews and exclusion orders—leading to breach and subsequent imprisonment.
2.4 The ALRC recognises that there has been a general upsurge in remand populations nationwide. Nonetheless, there may be Aboriginal and Torres Strait Islander peoples held on remand unnecessarily, and the proposals in this chapter seek to enable Aboriginal and Torres Strait Islander peoples accused of low level offending to be granted bail in circumstances where risk can be appropriately managed.
2.5 The ALRC proposes that bail authorities should be required to take cultural considerations into account when making bail determinations and setting bail conditions for Aboriginal and Torres Strait Islander peoples. This approach has been adopted in Victoria.
2.6 The ALRC also proposes that state and territory governments work with peak Aboriginal and Torres Strait Islander organisations to identify and fill gaps in service provision so that accused Aboriginal and Torres Strait Islander peoples may be supported on bail or diverted to appropriate programs and services, where necessary.
2.7 Recent reviews of bail laws have focused on presumption against bail categories. This chapter does not consider or make recommendations on offences included in presumptions against bail. Instead, it focuses on enabling those Aboriginal and Torres Strait Islander people who are unlikely to pose a risk to the community to be granted bail.
Australian Bureau of Statistics, Prisoners in Australia, 2016, Cat No 4517.0 (2016). The number of adult prisoners held on remand totalled 12,111 in June 2016, an increase of 22%, from 2015; the number of sentenced prisoners increased by 2% in the same period.
Bail Act 1977 (Vic) s 3A.
See, eg, NSW Sentencing Council, Bail—Additional Show Cause Offences (2015); Don Weatherburn and Jacqueline Fitzgerald, ‘The Impact of the NSW Bail Act (2013) on Trends in Bail and Remand in New South Wales’  (106) Crime and Justice Statistics: Bureau Brief, Issue; Hamish Thorburn, ‘A Follow-up on the Impact of the Bail Act 2013 (NSW) on Trends in Bail’; Paul Coghlan, Bail Review: First Advice to the Victorian Government (2017); Paul Coghlan, Bail Review: Second Advice to the Victorian Government (2017).