In Australia and most countries, everyone is innocent until proven guilty. Because of this, keeping someone in detention before trial comes with serious legal, practical and human-rights consequences, not just for the person accused but also for their family and for society.
That’s why most people accused of a crime are usually released on bail.
Bail is essentially a written promise where a person is released, on the agreement they return to court on a set date. It can also be granted to those who have been found or pleaded guilty while they wait for sentencing.
Bail allows the accused to keep their job, maintain their home, and support their family, while eliminating the costs of imprisonment.
However, bail comes with conditions that the person must follow, including curfews, regular check-ins, restrictions on whom they can talk to or where they can go, drug or alcohol testing, and staying at a specific address.
These conditions may seem easy to understand and follow, but breaches of orders were the third most common offence in Australian courts in 2022 and 2023. They made up 10% of adult court appearances, using valuable time and resources.
There’s a widespread belief that people on bail who breach their conditions commit more crimes – sometimes violent ones – that put others at risk and threaten public safety. This has fuelled demands for stricter bail laws or to stop granting bail altogether.
Many also think that when someone breaches their bail conditions, it’s because they’re deliberately defying or ignoring the rules. With this in mind, we wanted to look deeper.
We spoke to 230 police detainees about what led to their bail breaches. The results were surprising: very few (just 11%) breached by committing new offences.
Instead, most explained their breaches happened because of things beyond their control.
Homelessness
A fixed residential address is a fundamental condition for getting bail.
However, many of our participants shared that becoming homeless or returning to homelessness was common for them. Some said they left the address they provided because of family tensions:
I’m meant to stay at my sister’s house under my bail conditions, it’s for my curfew […] she kicked me out because we had an argument. Now I’ve breached my conditions and have nowhere to go.
It’s well known that chronic homelessness makes it tough to comply with bail conditions, and we found the same. A detainee told us:
It was an honest mistake and a mix-up of the days.
Another said:
I was homeless at the time I was meant to go to court and dealing with a lot.
A third person told us:
I’m homeless and I’ve got bigger issues than going to court. I’m living in a tent in the park at the moment with no job.
The mental stress meant people focused on meeting basic needs such as food and shelter, which took priority over following bail conditions.
Family responsibilities
Participants also shared their personal responsibilities of caring for sick children, parents or other dependants. This often prevented them from attending court or reporting. One person told us:
I’m my nan’s carer […] I needed to look after her and my brother wasn’t there. I couldn’t go to court or make it. I’m the one who washes her and does everything for her […]
Family commitments clashing with reporting requirements led to feelings that the system was stacked against them and they had few options but to breach.
Work commitments
Employment often interfered with reporting on time and attending court.
I have to report Monday, Wednesday and Friday but I’m a truck driver. I have no problems with coming in to report, but I couldn’t make it because I was working. When I went in to report, they arrested me […]
Keeping a job is crucial for financial and housing stability. Having a stable job also deepens community connections to reduce the chances of getting involved in criminal activity.
Procedural barriers
When these kinds of everyday issues derailed compliance, many said they had tried to let the court, police or their lawyer know, either before or right after they missed reporting in or a court date but were faced with an inflexible system.
For some, even when they did manage to get through, they were told that by not reporting or attending court they had already breached their bail and a warrant would be issued for their arrest. A study participant told us:
I told them (the police) that I’d been kicked out (of the nominated accommodation) and wasn’t there and they locked me up here. I’ve got an extra charge now because I breached bail and probably won’t get let back out tomorrow. It wasn’t in my control. I was meant to be doing my medical to start work on the mines too tomorrow, so I won’t be working there now.
We recommend considering of the complexities of bailees’ lives when setting bail. More flexible reporting conditions for when “life happens” will reduce charge pile ups and pressures on the criminal justice.
Natalie Gately received funding from Western Australian Office of Crime Statistics and Research for this project.
Suzanne Rock received funding from Western Australian Office of Crime Statistics and Research for this project.
This article was originally published on The Conversation. Read the original article.
