Changes to Victoria’s bail laws would be nothing more than cosmetic if the government does not scrap the “reverse onus” bail provisions that have led to a near doubling of Aboriginal women in custody, legal groups have warned.
The Victorian government has committed to reforming the Bail Act after a damning coroner’s report into the death in custody of Veronica Nelson found it was “incompatible” with the state’s charter of human rights and discriminatory towards First Nations people.
After the Bourke Street massacre, the government introduced the reverse onus provisions for a broad range of offending in 2018, meaning it is up to defendants or their lawyer to show why bail should be granted – instead of prosecutors having to convince a court that a person should remain in custody.
In his findings into Nelson’s death, the coroner Simon McGregor described the changes as a “complete, unmitigated disaster”, with people accused of repeated bail or minor offences who present no risk to community safety being remanded in custody.
But while responding to a question in parliament on Tuesday, the premier, Daniel Andrews, would not guarantee that the government’s planned reforms would involve removing the presumption against bail.
On Thursday a Victorian government spokesperson said work towards reforming bail laws “is ongoing but is a complex area of law and should not be rushed”.
“Fundamentally, our bail laws need to protect the community from serious offending without having a disproportionate or unintended impact on those accused of low-level offending who do not present a risk to community safety,” the spokesperson said.
Nerita Waight, the chief executive of the Victorian Aboriginal Legal Service, said she was concerned the government would change the bail laws without scrapping the provisions.
“If they go down that path that only certain types of offenders have the right not to be automatically detained in custody and others do, I’d be very concerned,” she said.
“If focus on offence type rather than what the coroner and the experts have highlighted as the problem, which is the presumption against bail – the reverse onus tests – then that’s not really justice for Veronica.
“That’s not engaging in a meaningful transformational change, that her death has highlighted [as] needing to occur.”
In his findings, McGregor said that within a year of the 2018 changes, imprisonment rates for all adults increased and the rate at which Aboriginal women were imprisoned nearly doubled.
He called for the reverse onus provisions to be scrapped, along with several bail-related offences.
Amala Ramarathinam, the acting managing lawyer at the Human Rights Law Centre, urged the government to implement McGregor’s recommendations in full.
“Changes to Victoria’s dangerous and discriminatory bail laws must be wholesale, not piecemeal,” she said.
“Without these wholesale changes, the Andrew government will continue to inflict unnecessary and preventable harm on people, especially Aboriginal and Torres Strait Islander women, and put them at risk of dying in a police or prison cell.”
The Victorian Aboriginal Legal Service, the Human Rights Law Centre and the Law Institute of Victoria are advocating for creating a presumption in favour of bail for all offences.
Under this simplified process, the onus would be on police or prosecutors, with a specific and immediate risk to safety, or a demonstrable flight risk, to be demonstrated before bail is refused.
“The state has the resources … they should have the onus of proving that a person is an unacceptable risk,” said Law Institute of Victoria president, Tania Wolff.
“It shouldn’t be the case that an individual, who is usually in a difficult situation, on their own before the court, in a vulnerable position, has to fight the state to prove to a high threshold they should be allowed into the community.”
Wolff said any changes must include significant investment in areas such as housing, mental health and drug and alcohol rehabilitation.
“You don’t need to be a brain surgeon to realise that if you’ve got a prison population that’s full of people who are unwell, who are victims of family violence, who have cognitive impairments and a whole range of addictions and significant mental health issues, that going hard with a law enforcement response is not going to stop any of that,” she said.
