Legal frameworks to support adoption of s 3A

5.99     For a s 3A type provision to operate successfully, it is necessary that such a provision be supported by legal frameworks. As noted by Victorian Legal Aid, the provision does not operate ‘in a vacuum’.[158] The provision needs to be understood by those that administer it, and there needs to be adequate culturally appropriate and safe services and programs that Aboriginal and Torres Strait Islander people can access while on bail, when needed.

5.100  The ALRC recommends that the adoption of an equivalent s 3A bail provision by states and territories be supported by both strong guidelines on use and the provision of bail support programs and services.

The provision of guidelines

5.101  Stakeholders have told the ALRC that s 3A has been underutilised,[159] and that this underutilisation had contributed to s 3A having little impact on remand numbers in Victoria.[160]

5.102  The Victorian Aboriginal Legal Service (VALS) reported that s 3A has been narrowly interpreted by the court to apply to setting conditions, such as providing for multiple residential addresses and attending funerals, but not to the determination of risk and whether to grant bail.[161] VALS submitted that some members of the legal profession were not adept at posing the right questions and recognising issues that may arise due to a person’s Aboriginality. The number of Aboriginal and Torres Strait Islander people, especially women, still held on remand indicated that the provision was not well understood.[162] Dr Thalia Anthony submitted that s 3A has had an ‘equalising effect on bail outcomes’ for Aboriginal and Torres Strait Islander peoples, but that the benefit only arose when lawyers who sought to rely on the provision made detailed submissions on the relevance of the person’s Aboriginal background to the Court.[163]

5.103  The Law Institute of Victoria has previously recommended further guidance and associated training for Victoria Police, court registrars, magistrates and bail justices on cultural considerations, to be developed in partnership with the Victorian Equal Opportunity and Human Rights Commission.[164]

5.104  In their submission to this Inquiry, VALS supported the delivery of ‘cultural sensitivity training and guidance’ by VALS in partnership with the Law Institute of Victoria and the Victorian Equal Opportunity and Human Rights Commission to police, registrars, magistrates, bail justices and legal practitioners in Victoria.[165] Building better skills to deal with s 3A was also supported by Victoria Legal Aid, who observed that ‘the consideration of an individual’s Aboriginality does not exist in a vacuum, and requires understanding and skill across all involved in the determination of bail’. This requires ‘extensive cultural awareness education’ for legal advocates, prosecutors, and bail authorities in making bail determinations.[166]

5.105  The Judicial College of Victoria suggested that education developed in partnership with the ‘Victorian Aboriginal and Torres Strait Islander Community’ was needed specifically to guide judicial officers on how and when to refer to s 3A, as well as general Aboriginal cultural awareness education, which would operate to ensure that ‘bail authorities are aware of the cultural issues it refers to’.[167]

5.106  The experience in Victoria raises the issue of the proper application of s 3A provisions in Victoria, and the potential application of mirror provisions in other states and territories. For example, the NSW Bar Association—who ‘strongly’ supported the introduction of the provision in NSW—identified there to be a ‘significant risk’ that the provision would simply be given ‘lip service’ and make no practical difference to the application of bail law in NSW.[168] The YLCLC observed that s 3A was not always raised when it was appropriate to do so, indicating that, for other states and territories, the ‘existence of the provision does not guarantee that it will be used’.[169]

5.107  NATSILS supported further training of judicial officers to give appropriate consideration to information regarding a person’s culture and background. It suggested that training should be developed and led by Aboriginal and Torres Strait Islander organisations.[170] The Law Council of Australia suggested that training and material should go beyond just ‘cultural awareness’ and should ‘explore the modern manifestations of historical factors and highlight the social, political and economic position of Indigenous Australians in the context of offending behaviours’.[171]

5.108  The ALRC considers training, especially when developed and delivered by Aboriginal and Torres Strait Islander organisations, to be essential to building the necessary understanding of Aboriginal history and culture, and to place some offending in context. The RCIADIC recommended judicial training in 1991:

That judicial officers and persons who work in the court service and in the probation and parole services and whose duties bring them into contact with Aboriginal people be encouraged to participate in an appropriate training and development program, designed to explain contemporary Aboriginal society, customs and traditions. Such programs should emphasise the historical and social factors which contribute to the disadvantaged position of many Aboriginal people today and to the nature of relations between Aboriginal and non-Aboriginal communities today. The Commission further recommends that such persons should wherever possible participate in discussion with members of the Aboriginal community in an informal way in order to improve cross-cultural understanding.[172]

5.109  Broad judicial cultural awareness training has occurred to some extent—the ALRC notes, for example, the education provided to the NSW judiciary through the NSW Judicial Commission’s Ngara Yura Program.[173]

5.110  The ALRC supports further training for all criminal justice participants, but for a s 3A type provision to be successfully supported, there is a need to go further. Where s 3A provisions are adopted, there exists a concurrent need for well constructed written guidelines for criminal justice participants, including the judiciary.

5.111  It is desirable that the application and operation of s 3A type provisions be consistent within and across the states and territories.[174] For this reason, the ALRC suggests that guidelines should be written by relevant national legal bodies, working with Aboriginal and Torres Strait Islander organisations. There are bodies that are well placed to produce such guidelines. They may include, for example, the Australasian Institute of Judicial Administration, which produced the National Domestic and Family Violence Bench Book to provide background knowledge and research, and practical guidelines for courtroom management aimed at harmonising the treatment of domestic violence cases across jurisdictions.[175] This approach could make a good model for a nationally consistent approach to s 3A type provisions.

5.112  Other appropriate bodies to develop guidelines could include the Law Council of Australia; and coordinated responses from Directors of Public Prosecutions, Police Commissioners, and Attorneys-General. Courts could develop practice directions.

5.113  The ALRC does not make any recommendation as to the content of s 3A guidelines, but notes the Judicial College of Victoria recommended that cultural awareness and cultural competence education for judicial officers should include:

  • background information regarding the historical and ongoing impact of colonisation on Aboriginal and Torres Strait Islander people;

  • an explanation of intergenerational trauma;

  • contemporary issues such as daily exposure to racism;

  • cultural competency information about modes of communication, body language, the need for and use of interpreters, and related issues aimed at improving cultural safety in court; and

  • information about culturally-appropriate programs and services that support Aboriginal and Torres Strait Islander people who are on bail, community-based sentences or parole.

5.114  The College emphasised the need for all education to have been developed and delivered with Aboriginal and Torres Strait Islander communities, noting the need for a localised approach in order for judicial officers to ‘understand the specific issues affecting those who come before their particular court’.[176]

5.115  Relating specifically to s 3A, stakeholders to this Inquiry have further suggested that bail authorities be directed to limit their discretion so that, other than in exceptional circumstances, bail authorities preclude:

  • the possible repetition of minor offences from their considerations of community safety;[177]
  • refusal of bail due to the unavailability of adequate accommodation; and
  • the imposition of certain bail conditions such as curfews and non-association orders.[178]

The provision of bail support programs

5.116  A provision requiring consideration of culture, even with guidance, may not be enough to facilitate a grant of bail where a person requires support.[179] Aboriginal and Torres Strait Islander people 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’. The provisions need to be supported by ‘practical solutions and alternatives to refusal, such as bail hostels’.[180] As the YLCLC noted, the effect of s 3A provisions would be ‘diminished without available culturally appropriate bail supports and diversion options for Aboriginal and Torres Strait Islander peoples, undertaken in concert with Aboriginal and Torres Strait Islander people’.[181]

5.117  There are some services, but more options are needed to support Aboriginal and Torres Strait Islander people to be granted bail and to comply with bail conditions, including bail diversion options and bail supports.

5.118  Bail support for Aboriginal and Torres Strait Islander people generally takes three forms:

  • services that can support Aboriginal and Torres Strait Islander people to be granted bail and to meet the conditions of their release;
  • culturally appropriate programs; and
  • mainstream bail diversion programs.

5.119  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 people released on bail.[182] 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.[183] Examples of networked support services specifically for women include theMiranda Project in NSW, Sisters Inside in Queensland, and the Koori Women’s Diversion Program in Victoria.[184]

5.120  There are other relevant bail support programs. The NSW Government advised of the upcoming Dubbo Aboriginal Bail Project that looks to, among other things, link accused people to community support services. It also advised of the 16-week Aboriginal Court Diversion and Bail Support Program that operates out of Campbelltown Local Court for people with complex mental health and or drug and alcohol concerns and under which they have experienced no breaches of bail.[185]

5.121  The NT Government submission to this Inquiry spoke of ‘Alternative to Prison Models’, which are currently under development in the NT. This is to include supported bail accommodation and other bail diversion options, such as ‘saturated intense rehabilitation’ which is done ‘on country’.[186]

5.122  The ACT Government advised this Inquiry of its ‘bail support trial’, which produces information using ‘info graphics’ to help improve understandings of bail conditions and develops ‘individual support plans’.[187]

5.123  Aboriginal and Torres Strait Islander people 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.[188]

5.124  There are also specific bail diversion programs for Aboriginal and Torres Strait Islander people with alcohol dependencies, such as the Queensland Indigenous Alcohol Diversion Program, which may be entered before or after the entering of a plea. The Western Australia Indigenous Diversion Program is available on referral for people with substance use who have entered a plea of guilty in some regional areas in WA.[189] 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. Victoria has places in residential rehabilitation centres specifically to divert Aboriginal and Torres Strait Islander women from remand.[190]

5.125  Aboriginal and Torres Strait Islander people 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.[191] This program received support in the submission from VALS, who reported good outcomes using this service for their clients, advising that Aboriginal people feel safer accessing services from Aboriginal organisations. VALS recommended expanding Koori Case Managers.[192]

5.126  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. These programs include drug and alcohol intervention bail support programs, and early mental health interventions.[193] In 2009, 19% of participants in the NSW Magistrate Early Referral into Treatment (MERIT) program were Aboriginal or Torres Strait Islander people, and MERIT was identified by the Productivity Commission as a program that can work to decrease repeat offending by Aboriginal and Torres Strait Islander people.[194]

5.127  While there are many programs currently in place, all stakeholders to this Inquiry who submitted their views on bail programs supported the proposal for state and territory governments to work with relevant Aboriginal and Torres Strait Islander organisations to identify gaps in the provision of bail support programs to support Aboriginal and Torres Strait Islander people on bail.[195] As noted by ALS NSW/ACT, ‘Aboriginal and Torres Strait Islander organisations are the most valuable source of information on service gaps for Aboriginal and Torres Strait Islander people. This includes local organisations and relevant organisations’.[196]

5.128  ALSWA suggested that the best way to provide culturally appropriate bail support and diversion was to ‘develop and establish Aboriginal-run programs that provide holistic, flexible and individualised support and assistance’. ALSWA put forward their Youth Engagement Program as a model. This program has three Aboriginal diversion officers who work with young people appearing at court. Support provided by the Aboriginal diversion officers includes: accommodation assistance; referrals to programs; transport assistance; reminders for court and other appointments; mentoring; and liaison with agencies. The diversion officers work onsite at the Perth Children’s Court and conduct outreach services.[197]

5.129  Legal Aid WA also submitted that diversion programs, especially for young people, needed to be culturally appropriate—not just a ‘modified version of what is in place for non-Aboriginal children’. Local communities and Elders need to be involved in the design and operation of programs.[198]

5.130  VALS provided a number of recommendations relevant to creating consistent and flexible bail diversion programs for Aboriginal and Torres Strait Islander peoples. These included:

  • programs that address the underlying causes of offending behaviour such as drug and alcohol programs should be used;
  • diversion should be monitored and people unable to comply should be given second opportunities and support;
  • magistrates should have the final approval of diversion programs, and lawyers should be able to make submissions on diversion;
  • judicial training should be ongoing;
  • the offence types eligible for diversion should be expanded;
  • the conditions attached to diversion should be relevant and appropriate to the offending behaviour; and
  • Magistrate Courts should be linked in with Aboriginal and Torres Strait Islander organisations that can provide bail programs and support.[199]

5.131  Best-practice principles were identified by the Australian Institute of Criminology in a literature review of bail support programs in 2017.[200] The review was not specific to bail support programs for Aboriginal and Torres Strait Islander peoples, and focused on programs for young people. Nonetheless, the review found that each state and territory ran at least one ‘program or service to support people on bail—either directly, to allow the courts to grant bail, or to provide treatment and other services to defendants on bail’.[201] Best-practice programs were:

  • voluntary: participants are therefore motivated to engage in treatments;
  • individualised and holistic: responsive to the criminogenic needs of the participant;
  • timely: available immediately upon bail being granted;
  • collaborative: using interagency approaches;
  • supportive: prioritised support over supervision;
  • familiar: locally based; and
  • evidence based: based on sound guidelines and processes.[202]

Bail hostels and accommodation options

5.132  One of the key obstacles to grants of bail for Aboriginal and Torres Strait Islander people identified by stakeholders was a gap in accommodation services, especially for women. This has previously been noted by the Victorian Equal Opportunity and Human Rights Commission[203] and the Law Institute of Victoria, who recommended expanding culturally and gender appropriate housing so that it may support a greater number of individuals,[204] including services for female Aboriginal and Torres Strait Islander accused and their children.[205] The Victorian Equal Opportunity and Human Rights Commission identified that residential facilities for Aboriginal and Torres Strait Islander women with appropriate supervision, wraparound services, mentoring programs and access to their children are critical to the successful completion of bail conditions.[206]

5.133  The need for appropriate accommodation options for Aboriginal and Torres Strait Islander peoples seeking release on bail was reiterated by many stakeholders to this Inquiry.[207]

5.134  Traditional bail hostel models have been problematised for use in Australia: there has been a hesitancy to house together people who may have challenging behaviours and needs, and to disturb neighbourhoods.[208] Nonetheless, South Australia has established a bail hostel, and ALS NSW/ACT submitted that bail houses can

provide a safe, supportive, and supervised short-term housing arrangement for an individual who is eligible for bail, but may not be granted bail due to a lack of suitable and stable accommodation. Bail houses can provide a bail address for the full-duration of bail, or can act as an initial form of accommodation until other suitable and stable accommodation can be found.

Bail houses can also prevent or reduce breaches of bail conditions. Bail conditions frequently impose a ‘reside as directed’ condition on an individual. In NSW, for example, courts can impose a condition ‘requiring the accused person to reside at the relevant accommodation while at liberty on bail’ under s. 28(6)(a) Bail Act 2013 (NSW). This can be a difficult condition for Aboriginal people where an individual is required to reside in unsuitable accommodation.[209]

5.135  Accommodation needs differ from area to area—the breadth of what may be needed was reflected in the range of suggested models submitted by stakeholders. VALS recommended gender and culturally appropriate accommodation and that other support services be expanded for Aboriginal and Torres Strait Islander peoples.[210] The NSW Bar Association and Legal Aid WA advocated appropriate funding of bail houses or non-custodial remand centres as alternatives to remand custody.[211] The Queensland Law Society sought the immediate implementation of emergency accommodation services, prioritising regional and remote areas.[212] NAAJA advised this Inquiry that there were no ‘culturally appropriate bail support programs available for people who require suitable accommodation to secure bail’ in the NT, in remote or in metropolitan areas.[213] The Legal Services Commission of SA noted the difficulty of finding suitable accommodation in metropolitan areas, especially if the person is ‘far from country’. To fill this gap, the Legal Services Commission suggested that culturally appropriate bail hostels, modelled on the bail hostel in SA, though run by Aboriginal and Torres Strait Islander communities and organisations, were needed.[214]

5.136  The Law Council of Australia and Legal Aid WA suggested that culturally appropriate hostels should be modelled on the UK ‘Approved Premises’ model, whereby accommodation is provided along with supervision, rehabilitative services, drug and alcohol testing. It was further suggested that these hostels could be used by people transitioning out of prison or released on parole, noting the connection between homelessness and re-incarceration.[215]

5.137  ALS NSW/ACT preferred the ‘Bail Supportive Housing Program’ from Ontario Canada, noting the need for specific housing for Aboriginal and Torres Strait Islander people. The key features of the Canadian model include: 24-hour support and supervision; programs such as life-skilling and referral to counsellors and housing agencies; dedicated Indigenous staff including an Aboriginal Bail-Program Supervisor, who also provides outreach services to community.[216]

5.138  The ALRC considers that governments should consult with Aboriginal and Torres Strait Islander organisations to identify local solutions for bail accommodation and best-practice elements of bail accommodation models employed elsewhere.

5.139  Other identified gaps in service provision to support a grant of bail for Aboriginal and Torres Strait Islander have included:

  • services in support of Aboriginal and Torres Strait Islander accused people with cognitive or mental impairment;[217]
  • male behavioural change programs. VALS specifically noted an undersupply of men’s behavioural change programs, necessary for those accused of family violence who wish to be granted bail;[218]
  • cognitive behavioural therapy options in regional areas. VALS again advised the ALRC that, in regional Victoria, there remains a ‘critical undersupply of culturally specific therapeutic services’. This makes grants of bail difficult to achieve, especially where the accused must ‘show cause’ in bail applications;[219] and
  • rehabilitation programs.[220]

5.140  As with bail accommodation, the ALRC recommends that governments work with local Aboriginal and Torres Strait Islander organisations to identify and rectify gaps in service provision.