Please note: This story contains reference to someone who has died.
Fifty-five Victorian, national and international organisations signed onto VALS’ open letter during Reconciliation Week this year, calling for urgent reform of Victoria’s broken, punitive bail laws.
And yet, despite the theme of this year’s Reconciliation Week being “More than a Word”, we are all still waiting for a response to the letter, let alone action.
The devastation wrought by the bail laws does not get a daily media conference.
And while most Victorians are certainly aware of the shameful overincarceration of Aboriginal people, they are not aware of how the Andrews Government’s bail laws contribute to this crisis, putting immense pressure on the prison system.
In a political play to be seen as tough on crime, the Andrews Government’s knee-jerk reaction to the Bourke St tragedy was to create a punitive bail regime, against the advice of experts, and ignoring the voices of marginalised communities.
The result has been that Aboriginal women are now the fastest growing demographic in Victoria’s prisons.
More than half of incarcerated women are languishing on remand, having not been found guilty of any offence. Many of these women are parents or primary caregivers, and the ripple effect on families and communities is undeniable.
Imprisoning Aboriginal women who have not been found guilty of any offence is contributing to the unacceptable number of Aboriginal children being removed from their families and their culture – a modern day Stolen Generation.
Many of these women are also victim-survivors of family violence. They come into contact with the criminal legal system because the culturally safe support services they need are not available – although they had been promised to them by the Andrews Government after the Royal Commission into Family Violence.
Many women do not have safe, stable accommodation and so are “housed” in prison. What little support and structure those women did have are disrupted or stripped from them once they are imprisoned.
Many of the Aboriginal women caught by the bail laws have been charged with survival or poverty-related offences, offences related to substance use and dependency, or are misidentified as “perpetrators”.
These sorts of offences, if proven, would often not even result in a term of imprisonment.
The Andrews Government keeps saying that Aboriginal women being remanded at staggering rates is an “unintended consequence” of its draconian bail laws.
This brings little solace to Aboriginal women who have spent months encased in metal and cement, away from their children and families, in the middle of a pandemic.
To Aboriginal women whose children have been swept up in the child protection system.
To the Aboriginal children who will be deprived of connection to family and country, denied their right to grow up strong in their culture. To the families and communities whose loved one has died in custody.
It is simply no longer possible to insist that the over-incarceration of Aboriginal women is an “unintended consequence”.
Not only are the experts who research, work in and have lived experience of the criminal legal system being ignored, the Andrews Government’s bail laws contradict the recommendations of the Royal Commission into Aboriginal Deaths in Custody. Recommendations which made it clear that bail should be made more accessible to Aboriginal people, and that imprisonment should be a last resort
These bail laws are contributing to Aboriginal deaths in custody.
Veronica Marie Nelson Walker was denied bail under these laws for shoplifting-related offences. Mere days after being remanded, Veronica was found dead in her prison cell at the Dame Phyllis Frost maximum security women’s prison.
How is this acceptable?
Some say that Victoria is the most progressive state in Australia, but no government that chooses to sacrifice Aboriginal women to win a political game can claim to be progressive.
At the Victorian Aboriginal Legal Service we see the suffering and devastation that these bail laws are inflicting on Aboriginal women and Aboriginal communities every day. Our Custody Notification Service and community justice programs are struggling to deal with surging demand.
But we know how to fix this crisis.
There should be a presumption in favour of bail for all offences.
The offences of committing an indictable offence while on bail, breaching bail conditions and failure to answer bail should be repealed. There should be an explicit requirement that a person may not be remanded for an offence that is unlikely to result in a sentence of imprisonment.
Decision-makers must be required to consider the implications for dependent children, when making bail decisions for mothers and primary carers.
Children should not be subject to the same bail tests as adults.
The Andrews Government should demonstrate its commitment to Aboriginal self-determination by providing sufficient funding to Aboriginal Community Controlled Organisations, so that they have the resources to support Aboriginal communities.
VALS will continue to advocate for urgent, evidence-based, reform of Victoria’s failed bail laws. The current laws do not make the community safer, but instead, harm Aboriginal communities.
We will continue to advocate for the Government to deliver “more than words” for Aboriginal people.
By Lee-Anne Carter, Statewide Community Justice Programs Leader, and Andreea Lachsz, Head of Policy, Communications and Strategy.
The Victorian Aboriginal Legal Service provides legal assistance for Aboriginal and Torres Strait Islander Peoples in Victoria. They were established to address the over-representation of Aboriginal and Torres Strait Islander Peoples in the criminal justice system.