Aboriginal people facing criminal charges in New South Wales are more likely to be refused bail by police than non-Aboriginal defendants, according to research released on Tuesday by the NSW Bureau of Crime Statistics and Research (BOCSAR).

Analysing over 500,000 bail decisions, BOCSAR found that legal factors had the most effect on police and court decisions to refuse bail, including offence seriousness, concurrent charges or prior offending or imprisonment.

However, in analysing defendant characteristics, the research confirmed that police were more inclined to refuse bail for Aboriginal defendants than they were for non-Aboriginal defendants. Male defendants between 35 and 44 were the most likely to be refused bail by courts and police.

The research noted that 25 per cent of adults and 45 per cent of young people on remand in the State identified as Aboriginal. In NSW, Aboriginal and Torres Strait Islander people account for 3.4 per cent of the population.

“This study confirms that bail decisions are overwhelmingly based on legal factors related to offending. However, it remains possible that Aboriginal people are disadvantaged in police bail decisions and that this is contributing to their overrepresentation in custody,” said BOCSAR Executive Director Jackie Fitzgerald.

“A new study is planned to determine definitively whether the Aboriginal bail result reported here is due to bias or a factor not controlled for in this research.”

The Aboriginal Legal Service NSW/ACT welcomes the research, noting that it reflects their concerns regarding systemic racism within NSW Police.

“These findings are disappointing but not surprising. We welcome the data being out for all to see,” said Sarah Crellin, Principal Solicitor (Crime Practice) at ALS NSW/ACT.

“Given the trauma that Aboriginal people and their families suffer when in prison, and the unacceptably high number of Aboriginal deaths in custody, it should be an urgent priority to reduce the number of Aboriginal people in NSW prisons.

“Yet the facts show that Aboriginal people are being disproportionately locked up without being sentenced of a crime.”

Crellin embraced BOCSAR’s commitment to further research.

“While knowledge is always a good thing, we need much more than research — we need action,” Crellin said.

ALS NSW/ACT is calling for Aboriginality to be a standalone provision within the Bail Act 2013 (NSW). This means courts and police would have to consider factors around someone’s Aboriginality previous to bail decisions.

The organisation is also calling for the introduction of a Bail Act for children and young people.

A recent study conducted by ALS NSW/ACT echoed the BOCSAR findings. It was found that Aboriginal young people had high rates of short-term remand due to being refused bail by the police, then having it granted by the courts upon first appearance.

“Once you place a child in jail, they are much more likely to return as an adult. We should be aiming to divert young people away from the criminal justice system,” Crellin said.

By Rachael Knowles