The New South Wales government says it will “review” a bipartisan recommendation to force judges to consider whether refusing bail to a parent accused of a crime would harm their children.
A NSW parliamentary inquiry last year called for the attorney general to change the law and “mandate” judges and magistrates to consider “parenting and caregiving responsibilities” when making bail decisions.
The joint committee – which included Liberal members, as well as MPs from Labor and the Greens – recommended sweeping changes to bail laws that would bring the state in line with United Nations standards over the imprisonment of women.
It came amid a series of changes to the laws over the past decade that have led to a stark increase in the number of people refused bail before being found guilty of an offence.
Women have been particularly overrepresented. According to the NSW Bureau of Crime Statistics and Research, the number of women held on remand in NSW more than doubled between 2011 and 2017, with Aboriginal women overrepresented in the data.
Changes to the Bail Act to consider the impact of a parent’s incarceration on children have long been pushed for by women’s justice groups, as well as the government-appointed NSW advocate for children and young people, as well as the children’s guardian.
Despite that, the government has not indicated support for the change. Instead, in a response to the inquiry published prior to Christmas, it noted judges and magistrates “may” consider parenting responsibilities under current bail laws.
“Courts have considered the potential impact of bail decisions on children when determining what the accused person’s parenting/caregiving responsibilities are,” it said. It said it would “keep this under review”.
But advocates say changes to the Bail Act would both help relieve the remand population inside prisons, while mitigating the impact on children whose parents were charged with minor offences.
“We know that in NSW if you are an Aboriginal youth in juvenile detention, 70% will have had a parent in prison. For all youth it’s 50%. It’s literally just a cycle,” said April Long, a director of the Community Restorative Justice Centre and chief executive of Smart Recovery, who gave evidence at the inquiry.
“I know of … a grandmother, a mother and a daughter who are all inside. If it was mandated that a magistrate consider a primary care giver’s responsibilities and the impact on children, we could see community orders given for so many non-violent offences.”
The NSW children’s guardian, Janet Schorer, also gave evidence during the inquiry that “even a few weeks in prison has a significant impact on a child” and that there were “certainly better approaches” to bail considerations.
Similarly, the NSW advocate for children and young people, Zoë Robinson, noted that while bail laws ask judges to consider any “special vulnerability or needs” of an accused person such as their age or being Aboriginal or Torres Strait Islander, there was “no reference … to a specific consideration of the impact of remand on a defendant’s children”.
Robinson also noted that such a move would bring NSW in line with the UN standards for the treatment of female prisoners, of which Australia is a signatory.
The Bangkok rules, as they are known, state that sentences should consider the best interests for children and that non-custodial punishments should be preferred in cases of non-violent offences.
Other recommendations made by the inquiry also sought to force courts and police to exhaust “every alternative” to a custodial sentence in cases where a primary carer would be sentenced to less than 12 months in prison, as well as considering the impact on children when handing down custodial sentences generally.
But the government only noted those recommendations, saying courts had a “broad discretion to consider specific aggravating and mitigating factors in sentencing”. But Long said often those responsibilities were not considered by judges or magistrates.
“When it’s discretionary, it’s up to the magistrate, and given what we know about the impacts of parental incarceration … the harm caused is so significant it should be a mandated requirement,” she said.
