Victoria’s bail laws are broken and need to be fixed
OPINION | Dignity for People in Prison
Victoria’s bail laws are broken and need to be fixed.
As the world marks International Women’s Day, which this year aims to challenge gender inequality, it is fitting to call out Victoria’s broken bail laws and the discriminatory impact they are having on women in our prison system.
Victorian Premier Daniel Andrews.
By Monique Hurley
Senior Lawyer
Human Rights Law Centre
Victoria has some of Australia’s most onerous and dangerous bail laws, which regularly fail to uphold the most basic tenets of a fair and equal justice system. They are unfairly removing women from their families, and funnelling them into prisons to be warehoused on remand before they have been sentenced for a crime.
We imagine prison is a place where people go to be punished once they are found guilty of a crime – a serious one at that – but far too often this is not the case. Right now, nine out of ten women entering prison haven’t been found guilty of a crime – they are in pre-trial detention.
How did we get here? The bail reforms introduced by the Andrews government in 2018, which were intended to target violent men like James Gargasoulas who killed six people and injured many others in a violent car attack on Bourke Street, have in practice impacted women experiencing poverty and Aboriginal and Torres Strait Islander women the most.
The 2018 bail reforms increasingly put the burden of proof on the people charged with an offence to show why they should be released on bail.
This is resulting in more women being denied bail, not because they pose a risk to the community, but because they themselves are at risk – of family violence, homelessness, economic disadvantage and mental illness. These intersecting forms of disadvantage make it harder for women to put forward a case in favour of bail, which often makes time behind bars the default setting.
For those experiencing family violence, their disadvantage is compounded because the bail laws punish rather than help address their circumstances. This impacts the very people who the Andrews government has repeatedly vowed to protect: survivors of family violence.
What’s more, the majority of women detained have children and even just a short time in prison means that they risk losing their kids, as well as their homes, jobs and connection to the community. Many of these positive factors in life that act as protective forces against poverty and abuse are removed, and upon release, women are often forced to start over, on their own.
The net has also been widened in terms of the offences caught by the bail laws. Before, the hardest legal test applied only to the most serious offences. Now, repeat, low-level wrongdoing – like shoplifting – can be held to the same standard as the most violent and dangerous crimes.
We imagine that ‘innocent until proven guilty’ holds true for our legal system, but so often this isn’t the case. Rather than being afforded the opportunity to fight their cases from a strong position of freedom, women are forced to deal with their legal matters from prison cells while enduring the harm that’s inevitable from being imprisoned.
This results in the injustice of women typically spending short periods in prison on remand and often pleading guilty, and receiving ‘time served’ prison sentences for low-level wrongdoing that should have never warranted a term of imprisonment, because that is the most straight forward path to release.
Victoria’s bail laws have become unhinged from the basic principles of equality and fairness that are meant to underpin our legal system, with the number of women on remand in Victorian prisons more than doubling over the last ten years during a period when Victoria has experienced a relatively flat crime rate.
Years of ‘tough on crime’ politics have a lot to answer for in how we got to this point. It takes enormous political courage to counter such a narrative, but that is exactly what is needed. The alternative is that more and more women will continue to be wrongly locked away in prisons, rather than being with their families and communities; and we are left with a criminal legal system that turbo-charges injustice.
Prisons don’t rehabilitate or remedy disadvantage, they compound and exacerbate it.
This International Women’s Day, the Andrews government must step up, listen to Aboriginal and Torres Strait Islander and community advocates and fix Victoria’s broken bail laws to end the needless imprisonment of women.
Monique Hurley works in the Dignity for People in Prison team at the Human Rights Law Centre. You can learn more about the team's work here.