The operation of bail laws and legal frameworks

5.7        A person may 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.

5.8        Bail laws are complex and vary between states and territories, with each having a relevant Bail Act.[1] A general overview of the operation of bail laws across states and territories is provided below.

5.9        Bail can be determined at different times by police, magistrates, judges and, in some jurisdictions, by bail justices.[2] 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 accused person with a Court Attendance Notice (or equivalent) to attend court, or police can release the accused person on bail. It is always a condition of police bail that the accused person attends court.[3] Other conditions may also be imposed.

5.10     When police refuse to release the accused person or to grant bail, the police must bring the accused person before the Local or Magistrates Court as soon as possible, where the accused person can apply to the court for bail.[4]

5.11     A statutory presumption against bail attaches to some offences. These generally include serious indictable sexual and personal violence offences, as well as weapon and terrorism-related offences.[5] In some jurisdictions these offence categories are known as ‘show cause’ or ‘exceptional circumstances’ offences.[6]

5.12     When an accused person successfully ‘shows cause’, 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 be imposed to mitigate that risk. When determining unacceptable risk, 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.[7] These risks are termed ‘bail concerns’ in New South Wales (NSW).[8]

5.13     The type of matters to be considered when assessing ‘bail concerns’ are prescribed in some jurisdictions. In NSW, for example, the type of matters to 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 non-compliance with court orders; the nature and seriousness of the offence; and any special vulnerability or needs the accused person has including being young, being an Aboriginal or Torres Strait Islander person, or having cognitive or mental health impairments.[9]

5.14     In Western Australia (WA), the bail authority must have regard to the nature and seriousness of the offence; the character, previous convictions, home environment, background, place of residence, and financial position of the accused; the history of any previous grants of bail; and the strength of the evidence. The bail authority can also have regard to any other matters that are considered relevant.[10] Similar matters are included in bail legislation in other states and territories.[11]

5.15     Bail authorities can impose conditions that are ‘reasonably necessary’ to address any identified bail concern. Conditions imposed upon granting bail must be ‘reasonable and proportionate’ to the offence, and be no more onerous than necessary to address the bail concern.[12] Bail conditions can require an accused person to do, or refrain from doing, certain things—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 an accused person to undergo drug testing.[13] An accused person can apply to have their bail conditions varied.[14]

5.16     Breaching a condition of bail may result in bail revocation by the court, meaning an accused person is then held in prison on remand.[15] Breach of bail conditions is an offence in most jurisdictions,[16] as is failure to appear to answer bail.[17]

5.17     Some bail conditions must be confirmed or met before an accused person will be released on bail. Pre-release conditions can include the confirmation of an address or the provision of a surety.[18]

5.18     An accused person may also apply for bail following conviction pending sentencing or an appeal.[19]

The impact on Aboriginal and Torres Strait Islander people

5.19     Stakeholders to this Inquiry raised concerns about the effect that remand rates had on Aboriginal and Torres Strait Islander incarceration rates. For example, the Australian Lawyers for Human Rights (ALHR) observed that ‘bail and remand processes significantly contribute to the unnecessary imprisonment of Aboriginal and Torres Strait Islander people’,[20] while the NSW Bar Association considered bail law reform to be one of the most ‘important areas requiring attention in order to reduce the incarceration rates of Aboriginal and Torres Strait Islander people’.[21]

5.20     There has been a general upsurge in remand populations nationwide,[22] and this has been especially pronounced for the Aboriginal and Torres Strait Islander prisoner population.

5.21     In 2016, the national Aboriginal and Torres Strait Islander remand prisoner population accounted for 30% (3,221) of Aboriginal and Torres Strait Islander prisoners, which amounted to 27% of all prisoners held on remand.[23] By June 2017, 33% (3735) of the national Aboriginal and Torres Strait Islander prisoner population were in prison held on remand.[24]

5.22     Aboriginal and Torres Strait Islander peoples have continued to be over-represented on remand by a factor of over 11 compared to non-Indigenous remandees since 2010—in 2016, the rate of remand for Aboriginal and Torres Strait Islander peoples was 432 per 100,000 and 38 per 100,000 for non-Indigenous people.[25]

5.23     In 2016, Aboriginal and Torres Strait Islander people 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%).[26] The category of ‘acts intended to cause injury’ is broadly defined and can include low-level instances of offending. For example, 33% of Aboriginal and Torres Strait Islander peoples held on remand for ‘acts intended to cause injury’ were charged with a serious assault not resulting in injury[27] and 12% for common assault. This is not to say that all Aboriginal and Torres Strait Islander people held on remand for ‘acts intended to cause injury’ were held for low-level offending: 54% in this category were held on remand for charges of serious assault resulting in injury.[28]

5.24     In NSW, Aboriginal and Torres Strait Islander males spent an average of 44 days on remand, while Aboriginal and Torres Strait Islander females spent an average of 38 days on remand.[29] 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 any custodial penalty on conviction.[30]

5.25     Aboriginal and Torres Strait Islander women are a fast growing group within the remand population. For example, the Inspector of Custodial Services in WA reported that WA 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’.[31] It was reported that, in Victoria in 2012, 60% of Aboriginal and Torres Strait Islander women held on remand were released without sentence.[32] As discussed in Chapter 11, being held in prison for even a short period of 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’.[33]

Drivers of over-representation on remand

Bail refusal

5.26     Aboriginal and Torres Strait Islander peoples are less likely to be granted bail than non-Indigenous people.[34] Bail refusal for Aboriginal and Torres Strait Islander peoples has been attributed to the likelihood of accused Aboriginal and Torres Strait Islander people having prior convictions. Aboriginal and Torres Strait Islander people 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.[35]

5.27     The Victorian Supreme Court appeal matter of Re Mitchell [2013] VSC 59 provides an example of how prior low-level offending can affect bail determinations for Aboriginal and Torres Strait Islander people.[36] Mitchell, a pregnant 22-year-old Aboriginal sole parent, had been charged with offences related to begging and obtaining a ‘financial advantage by deception’ because she had been travelling on the train using a children’s ticket. Mitchell was initially refused bail at the Magistrates’ Court of Victoria where that court 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.

5.28     In determining the appeal, theSupreme Court found that the magistrate’s conclusion that Mitchell presented an unacceptable risk of reoffending was ‘unassailable’.[37] 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.[38]

5.29     The Supreme Court granted bail, with reference to the requirement to consider Aboriginality at s 3A of the Bail Act 1977 (Vic). The Supreme Court noted the potential to over-police Aboriginal and Torres Strait Islander peoples and suggested that charging Mitchell with obtaining financial advantage by deception for travelling on a child’s ticket was ‘singularly inappropriate’.[39]

5.30     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.[40] The report of the RCIADIC 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 because of the particular difficulties they can face in appearing at a court at an ‘appointed place or time’.[41]

5.31     The observations of the RCIADIC were repeated in evidence given by the Chief Justice of the Supreme Court of Western Australia to the 2016 Senate 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 people were often refused bail.[42]

5.32     The Victorian Equal Opportunity and Human Rights Commission observed that Aboriginal and Torres Strait Islander women were often denied bail due to a lack of safe, stable and secure accommodation to which Aboriginal and Torres Strait Islander women could be bailed, particularly in regional locations.[43] Finding suitable accommodation was especially difficult for women with substance dependencies resulting in both Aboriginal and Torres Strait Islander women and non-Indigenous women being placed in custody for therapeutic reasons, designed to stabilise their addictions and remove them from unsafe environments that may include family violence.[44]

5.33     Language barriers have been identified as another factor that can result in Aboriginal and Torres Strait Islander people being denied release on bail.[45] In their submission to this Inquiry, ALHR identified that language barriers can negatively affect bail determinations for defendants who are unable to accurately outline their living arrangements, support networks, cultural obligations and other relevant matters to the court.[46]

5.34     Stakeholders to this Inquiry suggested that, when there is a presumption against bail or when an accused must ‘show cause’, the obstacles to a grant of bail for an Aboriginal and Torres Strait Islander person is magnified. Some stakeholders disagreed with the ALRC’s decision not to interrogate the categories of show cause offences.[47] For example, ALHR observed:

ALHR notes and regrets the Commission’s decision not to discuss bail presumptions in the Discussion Paper. Bail presumptions are often the decisive legislative factor in bail applications. Just as importantly, where legislation imposes a presumption against bail for a low level offence this can result in defendants spending longer on remand than they would likely serve as a sentence. For example, ALHR notes that in the Northern Territory a defendant who has a recent prior conviction for a “technical” [a breach that causes no harm to the protected person] breach of a domestic violence order and is again arrested for a technical breach will face a presumption against bail. This is so notwithstanding that, at the sentencing stage, such a defendant may stand good prospects of a very short prison sentence or a non-custodial disposition. ALHR hopes that the Commission will address this issue in its final report.[48]

5.35     Aboriginal Legal Service of Western Australia (ALSWA) referred to the impact on Aboriginal and Torres Strait Islander accused for ‘Schedule Two’ cases, which carry a presumption against bail in WA. Schedule Two cases are matters where the accused allegedly committed a ‘serious offence’ while on bail or parole for another matter. ALSWA advised that the category of ‘serious offences’ includes conduct such as indecent assault, stealing and breaching a police order.[49]

5.36     The Criminal Lawyers Association of the Northern Territory (CLANT) noted that amendments to the Bail Act (NT) in 2015 expanded the number of offences that triggered the presumption against bail. While recognising that this was not focus of the ALRC Inquiry, CLANT submitted that ‘the significant effect this provision has on increasing the number of ATSI people on remand cannot go unremarked’.[50]

5.37     Legal Aid NSW, having represented 3,000 accused Aboriginal and Torres Strait Islander people in bail matters in 2016–17, was strongly in favour of removing the show cause provisions in the Bail Act 2013 (NSW).[51] It advised that, in NSW, an Aboriginal or Torres Strait Islander person who had been bailed for a minor offence, if subsequently charged with stealing from a shop while on bail, will be bail refused unless they can ‘show cause’.[52]

5.38     The ALRC is aware of recent reviews and ongoing monitoring of the operation of ‘show cause’ provisions in the various states and territories.[53] Nonetheless, the ALRC accepts that the expansion of ‘show cause’ or presumption against bail categories has likely affected the Aboriginal and Torres Strait Islander remand population, and encourages states and territories to evaluate the effect of ‘show cause’ provisions on accused Aboriginal and Torres Strait Islander people when conducting their reviews.

5.39     Other issues raised by stakeholders relevant to bail refusal for Aboriginal and Torres Strait Islander accused people included bail provisions that operated to restrict multiple applications for bail following a bail refusal.[54] It was contended that these provisions increased the number of Aboriginal and Torres Strait Islander people held on remand, and acted as a disincentive to apply for bail until the person can ‘maximise their chance of release’.[55]

5.40     Stakeholders also drew attention to problems that exist in regional and remote areas when bail is refused by police, and the person is held in a remote police station until transported, or over the weekend, or both.[56] When arrested in a remote area and bail is refused by police, the defendant may be held in custody until court is next sitting. Transport to court can be cumbersome and expensive. Often the accused will be granted bail by the court at the first appearance and then have to return from the court to community at their own cost. ALHR observed that this results in defendants spending longer in police custody than necessary, and that this could be avoided by the ‘provision of funding for Aboriginal legal aid lawyers to represent such defendants by phone or video link at the time of their review of the initial police bail refusal’.[57] The NT Anti-Discrimination Commission suggested that servicing by legal advocates could be included as part of a custody notification service.[58]

Breach of conditions of bail

5.41     When bail is granted to an Aboriginal and Torres Strait Islander person, the conditions attached to bail may conflict with an Aboriginal and Torres Strait Islander person’s cultural obligations, increasing the risk of breach and consequent imprisonment.[59] 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’.[60] 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) was difficult for some Aboriginal and Torres Strait Islander people. 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.[61]

5.42     In their 2012 report on bail, the NSW Law Reform Commission (NSWLRC) 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.[62]

5.43     The NSWLRC also noted that Aboriginal and Torres Strait Islander people may have strong historical and cultural ties to particular locations. It found that bail conditions that restrict access to ‘place’ can have serious impacts on the person.[63]

5.44     For this reason, the NSW Equality before the Law 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’.[64] 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.[65]

5.45     There are also practical considerations, especially 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.[66] In such cases, place and circumstance can limit compliance with certain bail conditions.

5.46     Non-compliance with conditions of bail can be inadvertent. In 2014, the West Australian Auditor General found that one in five Aboriginal and Torres Strait Islander accused people may need help understanding bail, and noted that interpreters were limited.[67] In their submission to this Inquiry, ALHR observed how language barriers can detract from an accused person’s understanding of their bail conditions, noting that they are often explained in legalese by officers of the courts or police in a ‘time-poor’ environment. It was recommended that more interpreters be employed for this purpose.[68]

5.47     The submission from the NSW Government advised that the majority of breaches of bail conditions by Aboriginal and Torres Strait Islander people were generally for ‘technical breaches’. For example, in 2015 in NSW, 2,945 Aboriginal and Torres Strait Islander people had a breach of bail established against them in the Local Court. Of these, 32% involved a new offence; 25% breached curfew; 17% breached reporting requirements; and 14% failed to reside in the designated location. Some breached more than one condition.[69]

5.48     The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) submitted that courts continue to regularly impose conditions that

fail to recognise the specific cultural and community obligations, transport difficulties, transience and frequent short–term mobility (resulting in a lack of fixed address), living in a remote or regional community, poverty, or misunderstanding the purpose of bail that likely affect one’s ability to meet strict bail conditions for Aboriginal and Torres Strait Islander people.[70]

5.49     Stakeholders to this Inquiry stressed that bail conditions should be imposed only to address an identified risk. It was observed that non-association orders that restrict access to family networks and prevent Aboriginal people from ‘maintaining relationships, performing responsibilities or attending funerals’ rarely address a risk and can be ‘especially problematic’ for Aboriginal people.[71] The difficulty that women with family responsibilities may have in meeting conditions was also raised.[72] It was suggested that, to avoid an accused person being in breach and then remanded in custody, bail conditions should be kept to a ‘necessary minimum’.[73]

5.50     Bail conditions prohibiting alcohol intake were identified as particularly problematic for Aboriginal and Torres Strait Islander peoples.[74] Legal Aid WA suggested that alcohol bans increase the likelihood of breach, police intervention, and entry into custody for Aboriginal and Torres Strait Islander people ‘independent of whether they were likely to commit another offence or not’.[75] The ACT Law Society further observed that conditions regarding alcohol consumption can be both unachievable and harmful to people with alcohol dependencies, noting that ‘alcohol withdrawal can be fatal’.[76]

5.51     Pre-conditions for release on bail can also be unnecessarily or unfairly applied to Aboriginal and Torres Strait Islander accused people. Legal Aid NSW submitted that some magistrates impose sureties in the absence of any demonstrated concern that the offender will fail to appear.[77] Imposing sureties can be particularly difficult for Aboriginal and Torres Strait Islander people to meet, especially when living remotely without employment.[78] For Aboriginal and Torres Strait Islander people on welfare or in receipt of the cashless debit card, bail sureties can present an ‘insurmountable obstacle’ to release.[79]

5.52     The Aboriginal Benchbook for Western Australia Courts suggests that courts in Western Australia are adept at reducing the monetary value of bail and surety undertakings to a ‘level appropriate for applicants with a low income or few assets’, and often impose other conditions, such as reporting conditions, in lieu of requiring a surety.[80] Nonetheless, ALSWA advised that they had represented many clients who spend ‘weeks or months in custody because they are unable to raise a surety’, which is often set at $1,000 or $2,000.[81] Sureties were also identified as an issue by the Legal Services Commission of South Australia, which raised the possibility of implementing a Community Bail Fund to pay bail amounts of up to $2,000. The bail amounts would then be recycled back through the fund when the matter concluded.[82] ALSWA suggested that, instead of seeking a surety, the court should assess risk in relation to family, kin and community ties of Aboriginal and Torres Strait Islander accused people.[83]

5.53     Some pre-conditions are particular to certain regions. Legal Aid WA advised the ALRC of the ‘common practice’ of some magistrates in the Pilbara to require a letter from the chairperson of an Aboriginal community that is being proposed as a place of residence to state that the accused is welcome in that community. Legal Aid WA suggested that these letters may be difficult to obtain due to time constraints and communication difficulties, resulting in the person not being granted bail. Legal Aid WA submitted that ‘this requirement has become an impediment to the granting of bail, which accused people with proposed bail addresses in non-Aboriginal communities do not experience’.[84]

5.54     Pre-release conditions can affect a large number of Aboriginal and Torres Strait Islander people. In 2014, the Auditor General of Western Australia advised that there were over 1,600 people that had been granted bail but who were unable to meet their bail conditions in WA that year, so were held in remand until the condition could be met. At that time, over 40% of the prison population were Aboriginal and Torres Strait Islander people. The majority of people had release on bail delayed while they obtained a surety or a residential address. While 307 people who had been granted bail were unable to meet their pre-release conditions, and did not get released.[85] The ALRC suggests that, when implemented, the bail recommendations should lower the likelihood of bail authorities imposing inappropriate conditions, including the imposition of sureties (see below).

5.55     The NSW Bar Association suggested to this Inquiry that anyone granted bail, but not released due to unmet conditions, should be brought back before the court within a maximum of three days for the court to reassess their application for bail.[86]