Existing mechanisms to consider issues that arise due to Aboriginality

5.56     There are mechanisms in place to permit or encourage bail authorities to take into account issues that arise due to Aboriginality when making bail determinations. These include legal frameworks that provide guidance to judicial decision making and statutory provisions to consider Aboriginality or culture in bail determinations, outlined below. It is clear, however, that these existing mechanisms are not sufficient to ensure bail authorities adequately consider issues relating to Aboriginality, and to decrease the rate at which Aboriginal and Torres Strait Islander people are held on remand.

Legal frameworks

5.57     Legal frameworks in place in some jurisdictions encourage bail authorities to take into account historical context and cultural practices and obligations in bail determinations. The Aboriginal Benchbook for Western Australian Courts provides context, background and direction for the judiciary in regards to bail determinations. Itsuggests, for example, that under the ‘exceptional circumstances’ requirement for bail in serious cases, the circumstances of an Aboriginal accused person may constitute ‘exceptional circumstances’.[87]

5.58     The NSW Equality before the Law Bench Book provides guidance for bail determinations that involve Aboriginal or Torres Strait Islander people. When assessing ‘unacceptable risk’, it provides the following directives:

Aboriginal people must not be subjected to any more stringent tests in relation to bail, or any conditions attached to bail, than non-Aboriginal people. A bail condition can be imposed only for the purpose of mitigating an unacceptable risk.

Paternalism is not appropriate.

Irrespective of their housing status, Aboriginal people often have very close kinship and family ties to a particular location. Given Aboriginal kinship ties, it may also 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.

Assess 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 …

Reporting and residential conditions need to be realistic and not unduly oppressive—for example, a condition banning residence in a particular town, or requiring court permission to change, may be ruled as unduly oppressive if there is a death in the defendant’s family requiring their immediate attendance in that town.[88]

5.59     This approach has been reflected in appeal decisions of the Supreme Court of NSW. For example, in R v Brown [2013] 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.[89]

5.60     More recently, the Supreme Court of NSW found that lengthy periods of remand and separation from family may perpetuate a 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 [I]ndigenous 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.[90]

Statutory provisions

5.61     Provisions enabling courts to take into account cultural considerations when making bail determinations for Aboriginal and Torres Strait Islander people have been introduced to varying degrees in the NT, Queensland and Victoria. In NSW, there is a requirement to consider the vulnerability of Aboriginal and Torres Strait Islander accused people. These are briefly outlined below.

New South Wales

5.62     In NSW, s 18(1)(a) and s 18(1)(k) of the Bail Act 2013 require a bail authority to consider, among other things, ‘community ties’ and any ‘special vulnerability or needs the person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment’ when assessing ‘unacceptable risk’.[91]

5.63     The reference to ‘community ties’ in s 18(a) does not specifically mention Aboriginal and Torres Strait Islander peoples. It may, however, have particular relevance to Aboriginal and Torres Strait Islander people and be derived from the previous Bail Act 1978 (NSW) that directed courts to give consideration to the

person’s background and community ties, as indicated (in the case of an Aboriginal person or a Torres Strait Islander) by the person’s ties to extended family and kinship and other traditional ties to place and the person’s prior criminal record (if known).[92]

Northern Territory

5.64     The Bail Act (NT) requires bail authorities to consider, among other things, any ‘needs relating to the person’s cultural background, including any ties to extended family or place, or any other cultural obligation’.[93] The provision within the Bail Act (NT) does not specifically refer to Aboriginal or Torres Strait Islander culture.

5.65     The NT provision commenced in 2015 following a review of the Bail Act (NT). Stakeholders in that Inquiry supported the NSWLRC recommendation that bail authorities consider matters ‘associated with Aboriginal or Torres Strait Islander identity, culture and heritage, including connections with extended family and traditional ties to place’.[94]

5.66     The application of the NT provision to Aboriginal and Torres Strait Islander peoples may be hampered by a prohibition under Commonwealth law for bail courts to consider any form of customary law or cultural practice as a reason for lessening or increasing the seriousness of the offending.[95] However, the objective of the Commonwealth provision was to ‘prevent customary law from being used to mitigate the seriousness of any offence that involves violence against women and children’.[96] The NT Supreme Court has found that provisions of this type did not prevent courts from considering customary law or cultural practice to: provide context for offending; establish good prospects of rehabilitation (relating to sentencing); and to establish the character of the accused.[97] The equivalent provision relevant to sentencing in the NT is discussed in Chapter 6.


5.67     The Queensland provision permits the court to consider, among other things, evidence from a Community Justice Group:

16 Refusal of bail

(2)(e) if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about—

      (i)     the defendant’s relationship to the defendant’s community; or

      (ii)    any cultural considerations; or

      (iii)   any considerations relating to programs and services in which the community justice group participates.[98]

5.68     Community Justice Groups were established in 1993 in North Queensland. There are now up to 50 such groups operating throughout Queensland. Community Justice Groups consist of Elders, Traditional Owners, and other respected Aboriginal and Torres Strait Islander community members who come together to: make cultural submissions to Magistrates Courts on behalf of accused/defendants; identify appropriate treatment and support programs; and provide assistance to Aboriginal and Torres Strait Islander peoples as they progress through the Murri Court.[99]

5.69     Stakeholders advised the ALRC that the relevant bail provisions in NSW, the NT and Queensland were rarely used[100] and, when used, statutory construction had limited the application and effectiveness of the provisions.[101] NATSILS advised that the existing provisions were ‘simply too narrow or uncertain to be effective’.[102] CLANT observed that the NT provision informed only the decision whether to grant bail, not the conditions of bail. Further, the use of the word ‘needs’ rather than ‘issues’ in the NT was likely to ‘restrict the court from considering systemic issues such as the over-incarceration of ATSI people’.[103] Conversely, the Law Society of NSW Young Lawyers Criminal Law Committee (YLCLC) expressed concern that, in NSW, s 18(1)(k) appeared to be restricted to considerations of over-representation and the cycle of disadvantage, and did not include an assessment of ‘culture, kinship or the need to tailor bail conditions for Aboriginal people’.[104] The reliance on the language of ‘special vulnerability’ when assessing Aboriginality was also considered objectionable by the ALS NSW/ACT.[105]

5.70     The WA Commissioner for Children and Young People expressed support for the construction and limitations of the relevant NSW provision to the extent that it ‘focuses on factors of vulnerability or special needs, including cognitive or mental health impairment, rather than focusing on race’ stating that ‘race alone is not a ‘causal’ factor’. In the view of the Commissioner all factors related to disadvantage, other than race, should be considered in bail determinations.[106]

5.71     Caxton Legal Centre noted the limitations of the Queensland provision, pointing to the need for a provision that permitted the court to consider cultural factors more broadly ‘without the need for reports to be submitted’ by Community Justice Groups.[107] Caxton supported the ongoing resourcing of Community Justice Groups, while raising concerns that Community Justice Groups serviced only 25% of all accused/offenders identifying as Aboriginal and Torres Strait Islander in Queensland. It further suggested that the reliance upon participation by Community Justice Groups rendered the Queensland provision vulnerable: considerations of cultural factors by bail authorities were ‘impacted upon by both the reach of Community Justice Group program and the goodwill of incumbent State governments to adequately fund such programs’.[108]

5.72     There was also a reported lack of engagement with the provisions. CLANT observed that the introduction of the provision in the NT was not met with the same ‘fanfare’ as the amendments to expand presumption against bail offences, introduced at the same time. It noted that the cultural consideration provision had ‘not been embraced by the profession or the judiciary in the same way’.[109]

5.73     There was some support for the NSW provisions. NSW Chief Magistrate Henson submitted that bail law in NSW was sufficient to consider cultural issues, as the provisions already required the court to consider a list of specific matters. The extent to which issues relating to Aboriginality feature in the court’s assessment was ‘necessarily dependent upon the advocacy on behalf of the accused person’. This would remain the same whether the provision was updated or remained unamended. [110]

5.74     The YLCLC submitted that the NSW provision to consider ‘community ties’ (s 18(1)(a)) had been actively engaged with in bail proceedings—particularly when the Aboriginal Legal Service was acting as defence—to good effect. The YLCLC suggested that accused persons were more likely to be granted bail under the provision if they could demonstrate the support of their community, and particularly if they had the support of respected Elders. Involvement in Aboriginal and Torres Strait Islander support and cultural groups was also looked upon favourably by the court, although the YLCLC did report that Aboriginal and Torres Strait Islander support networks were not adequately considered by bail authorities.

5.75     Other NSW stakeholders were not so supportive of the efficacy of the existing legislative provisions. For example, the Public Defenders NSW advised that, in their experience, when the provision was mentioned in bail applications in NSW, it ‘rarely made a practical difference’, stating, ‘simply put, a stronger message needs to be sent’.[111]

The Victorian provision: s 3A of the Bail Act 1977

5.76     Victoria is the only state or territory to have introduced a standalone provision that requires the court to take culture into account:

3A Determination in relation to an Aboriginal person

In making a determination under this Act in relation to an Aboriginal person, a court must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including—

(a)     the person’s cultural background, including the person’s ties to extended family or place; and

(b)    any other relevant cultural issue or obligation.[112]

5.77     Section 3A interacts with s 19 of the Charter of Human Rights and Responsibilities Act 2006 (Vic),which provides for cultural rights, and specifically recognises that Aboriginal persons hold distinct cultural rights. Under the Charter, Aboriginal people must not be denied the right to:

  • enjoy their identity and culture;
  • maintain and use their language;
  • maintain their kinship ties; and
  • maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

5.78     Section 3A was introduced in 2010 following a Victorian Law Reform Commission (VLRC) report on bail.[113] The VLRC recommended that bail authorities be required to take into account cultural factors and community expectations to prevent Aboriginal and Torres Strait Islander people from being remanded unnecessarily or bailed subject to inappropriate conditions.[114] It was considered important to take cultural considerations into account in relation to all aspects of the bail determination process, including assessing unacceptable risk and the setting of bail conditions.[115]

5.79     The VLRC recommended that the Bail Act 1977 (Vic) be amended to include an Aboriginal and Torres Strait Islander-specific provision. This was needed both to overcome discrimination, and the historical and continuing disadvantage suffered by Aboriginal people in relation to bail and to provide consistency in the application of bail law:

It is important that … cultural factors and community expectations are taken into account when making bail decisions. Otherwise Indigenous Australians may be bailed on inappropriate bail conditions which they are more likely to breach, or remanded unnecessarily contributing to their overrepresentation in custody.

Without a specific direction to decision makers in the Bail Act, there is a risk that consideration of these matters will be inconsistent and will compound the historical and continuing disadvantage faced by Indigenous Australians in their contact with the criminal justice system.[116]

5.80     When the amendment incorporating s 3A was introduced into Parliament in 2010, the responsible Minister stated the following during the second reading speech:

The VLRC noted that Aboriginal Australians are overrepresented on remand and face unique disadvantages in their contact with the criminal justice system. In recognition of this, the VLRC recommended that the Bail Act should contain a specific provision for accused people who are Aboriginal.

In line with this recommendation, the bill inserts new section 3A in the Bail Act. Section 3A requires a decision-maker to take into account (in addition to any other requirements in the Bail Act) any issues that arise due to the Aboriginality of an accused when making a determination under the Bail Act.

Under section 3A, a decision-maker would be required to take into account matters such as an obligation to attend a community funeral or participate in community cultural activities when imposing conditions of bail on an accused who is Aboriginal.

While the provision requires the decision-maker to take the evidence into account it does not require the decision-maker to reach a particular decision. The test for granting bail remains unchanged, requiring a decision as to unacceptable risk.[117]

5.81     Courts have interpreted the Victorian provision to permit consideration of the over-representation of Aboriginal and Torres Strait Islander people in prison and the effects of policing practices.[118] The Supreme Court of Victoria (where appeals regarding bail applications are heard) has, however, stressed that the provision does not operate to grant bail to an Aboriginal and Torres Strait Islander applicant who poses an unacceptable risk to community safety.[119]

5.82     In R v Chafer-Smith the accused was required to ‘show cause’.[120] Bail was opposed upon the ground that the accused was an unacceptable risk. The Supreme Court of Victoria was urged by the applicant to apply s 3A ‘in the light of the report of the 1991 Royal Commission into Aboriginal Deaths in Custody, the vast statistical overrepresentation of Aboriginal and/or Torres Strait Islander Australians held in custody and current overcrowding in custody’.[121] The Court took these considerations into account, but refused bail, stating:

In the circumstances … I consider that there is a significant risk that the applicant will repeat [the] type of offending should I grant bail and should that risk become reality, the consequences may well be catastrophic. I have considered the applicant’s Aboriginality, as I must under s 3A of the Bail Act. I am obliged to take into account any issues that arise therefrom. I accept that Aboriginal Australians are very significantly overrepresented in our prisons and I consider that if this were a marginal case where a decision to grant bail or refuse it was a close run thing, then s 3A considerations may well operate to determine the application in the applicant’s favour.[122]

5.83     In DPP v Hume the applicant’s Aboriginal kinship obligations to his mother were taken into account under s 3A. The Court determined, however, that those obligations were not sufficient to overcome the prosecution objections that the applicant represented an unacceptable risk.[123]

5.84     In TM v AH the Court considered an application for bail by Aboriginal child aged 14 with an intellectual disability, who was required to ‘show cause’.[124] TM was refused bail by the magistrate after receiving a custodial sentence. Application for bail was then made in the Supreme Court of Victoria, where bail was granted. In its decision, the Supreme Court of Victoria held:

I am satisfied that TM has shown cause why his detention in custody is not justified. In particular, I am satisfied that TM’s tender age, his intellectual disability, his lack of prior convictions, the requirements of s 3A of the Bail Act, the reasonable prospect that he will receive a non-custodial sentence on appeal, and on the outstanding charges, and the proposed regime put in place for his release all, in combination, compel the view that his further detention in custody is not justified.[125]

5.85     The Supreme Court determined that the applicant was not an unacceptable risk when the conditions of bail were taken into account.[126] Considering the applicant’s family ties, the Court remarked that ‘TM’s ties to his family and home are strong, yet he is a long way from them at the moment and has been in that situation for nearly six months’.[127]

5.86     In Kirby v The Queen the Court granted bail after taking into account the strong family ties of the Aboriginal applicant with the local community.[128]