Victorians are being refused bail for offences so minor they might never have warranted an actual sentence of imprisonment, with a disproportionate number of Indigenous offenders ending up on remand, a truth-telling inquiry has heard.
Witnesses told the Yoorrook Justice Commission the increasing number of unsentenced prisoners in Victoria's prison system shows changes to the state's bail laws in 2018 are not working well.
"These changes are dangerous," said Kin Leong, managing criminal lawyer at Victoria's Aboriginal Legal Service (VALS).
"They're wreaking unchecked damage on the Aboriginal community and the broader community, and nothing has been done," he said.
Mr Leong said the laws needed to be changed immediately.
"It's extremely urgent. We've already had one avoidable death in custody. That is one too many," he said.
He is referring to the death of Veronica Nelson, who was refused bail after being arrested for shoplifting, and died in custody.
Victoria's bail laws were tightened following the 2017 Bourke Street attack, when James Gargasoulas murdered six people while on bail.
Onus of proof on accused people to get bail
The state government increased the number of offences where the presumption is against bail and put the onus on many alleged offenders to provide a "compelling reason" or "exceptional circumstances" in order to get bail.
These provisions can also apply to repeat, non-violent offenders including children.
Mutthi Mutthi, Waddi Waddi, Wemba Wemba woman and VALS community justice program leader, Charmain Anton, said any time in prison causes serious harm to Aboriginal people.
"We hear so often people going into the jail systems coming back out with more trauma than they went in with," she said.
Dan Nicholson, executive director of criminal law at Victorian Legal Aid, told the Yoorrook hearing lawyers see people in custody on remand who are not facing a term of imprisonment for the alleged offences they have committed.
"We had a young Aboriginal man who was experiencing homelessness, who was remanded for the theft of a single bottle of soft drink," he told the public hearing.
Number of unsentenced prisoners in Victoria surges
The number of unsentenced prisoners — that is, people who are on remand but have not been found guilty of an offence — has been on the rise since the bail changes were introduced.
In November, unsentenced prisoners made up 45 per cent of Victoria's prison population, according to state justice department figures.
That has increased from 31 per cent in 2018.
There is a disproportionate impact on Indigenous people. In November 2022 half of Victoria's Indigenous prisoners were unsentenced, up from 32 per cent in 2017, according to the Department of Justice
It is also having an even more severe impact on Aboriginal women, who are now the fastest growing cohort in the state's prisons: in November 2022, 58 per cent of Indigenous women in Victorian prisons were unsentenced.
Advocates said this had flow on impacts for Indigenous children, who may end up in the child protection system as a result of the punitive bail laws.
"They've got children, they've got lives," Ms Anton from VALs said.
"They've got families at home that are dependent on them, and they've been incarcerated."
Advocates say police prejudice worsens outcome for Aboriginal people in justice system
Several legal groups have also told the commission there needs to be urgent reform to raise the age of criminal responsibility, end public drunkenness offences and overhaul the internal police accountability process.
Kurnai Legal's principal solicitor Tessa Theocharous told the commission she believed police prejudice was exacerbating the impacts of the bail law changes.
She said she regularly had to fight for her Aboriginal clients to receive bail, even in situations where non-Aboriginal clients would typically receive bail.
"We have not had one case for a First Nations client where a police prosecutor will consent to bail," she said.
"Every single application for bail that we run at court is opposed by police for our First Nations clients."
First Peoples' Assembly co-chair Aunty Geraldine Atkinson said an external police accountability body was "well-overdue" to ensure Aboriginal Victorians could trust misconduct was properly investigated.
The Bangerang and Wiradjuri elder also told the commission "issue-specific" reform wouldn't be enough and she hoped the outcomes from the Yoorrook commission would help lead to transformational change.
"We talk about health, we talk about housing, about overcrowding, a whole range of other things," she told the commission.
"There's no coordination.
"If there was that holistic process, working together, I believe that we would be able to drastically improve the lives of our families and young children."
Victorian government yet to commit to bail changes
While the Yoorrook Commission's final report may not be due for years, the Victorian government is already sitting on findings of two parliamentary inquiries which found bail laws were contributing to the rise of Aboriginal women in prisons.
Both inquiries urged the government to review the Bail Act's operation, with a view to making presumptions against bail more targeted.
It has responded to neither. Its response to the Criminal Justice Inquiry was due in September.
Outgoing parliamentarian and former chair of the committee that oversaw the inquiries, Fiona Patten, said it was time the government took note.
"To just ignore all of those stories, all of that evidence is a travesty and means our justice system will continue to be unjust," she said.
The Attorney-General Jaclyn Symes would not say if the government would reform bail laws.
"We look forward to the Commission handing down its recommendations, so that we can continue our work towards Treaty," she said.
"We know that more needs to be done to address the over-representation of Aboriginal Victorians in the child protection and justice systems – that's why we're implementing a range of reforms with self-determination at their core."
