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The ‘constellation of circumstances’ that work against women applying for bail in Victoria

14th Oct 2020

Victoria often claims to have ‘the most onerous’ bail laws in the country, especially since the restrictive reforms to the Bail Act 1977 (Vic) were implemented in 2018.[1] These reforms have put more people in the ‘reverse onus’ position when applying for bail, making it increasingly difficult to avoid remand in custody while awaiting sentencing.

Prior to the COVID-19-driven downturn in remand numbers in mid-2020 (down 20% compared to the same time last year),[2] the effect of the bail laws on Victoria’s ballooning prison population was clear: remand rates were at unprecedented levels. In February 2020, 39% of all prisoners were un-sentenced, compared to 19% a decade earlier.[3] While it remains to be seen whether the reduction in remand numbers witnessed during COVID-19 will carry on into the future, the downturn nevertheless indicates that the heavy flow of remandees between the community and prisons represents a social and public health problem that can and must be addressed.

Advocates in the legal and community sectors have expressed concerns that Victoria’s tough bail system is having a particularly detrimental impact on women. Indeed, in the decade prior to 2020, the average number of women entering prison each month in Victoria increased three-fold, largely due to increases in the number of women being remanded.[4] Corrections Victoria data indicates that this cohort of women experience multiple and interrelated forms of disadvantage and injustice: at least a quarter of women on remand in 2015–2016 had experienced homelessness or housing instability, and almost two-thirds reported being a victim of family violence.[5]

The state’s harsh bail laws are further implicated in both the ongoing crisis of hyper-incarceration of Aboriginal and Torres Strait Islander peoples and the shameful national lineage of Black deaths in custody. In 2017, Aboriginal and Torres Strait Islander women made up 17% of women entering prison on remand in Victoria, [6] despite comprising less than 1% of the broader Victorian community.[7]

On 2 January 2020, Aboriginal woman Veronica Nelson died while on remand in Victoria’s maximum-security women’s prison after being refused bail for shoplifting charges. Her death reinforces the urgency of challenging and halting the punitive trend of pre-sentence incarceration.[8]

Prompted by wider concerns about the disproportionate impact of bail laws on marginalised women, a team of academics, lawyers and advocates from Fitzroy Legal Service and La Trobe and Deakin universities designed and carried out a 12-month study investigating the drivers of women’s remand growth in Victoria. The study involved analysis of prison entrance and Bail and Remand Court (BaRC) data; 100 hours of observation in the BaRC; and 13 interviews with criminal defence and duty lawyers. The results were published in July 2020 in a report.

Overall, the study identified a ‘constellation of circumstances’ that contribute to women’s criminalisation and incarceration. In particular, experiences of homelessness, poverty, family violence, and untreated mental and physical health problems including addiction make women more likely to become caught up in the criminal legal system.

The key findings of the study include:  

• Women are particularly disadvantaged across a range of areas that are relevant to making an application for bail, including access to housing, personal relationships and family support, and access to mental health, alcohol and drug supports;
• The so-called ‘risks’ that women present with in the courtroom are not indicators of community safety concerns, instead they are more likely to index women’s disadvantage and marginalisation;
• Policing has become ‘tougher’ under Victoria’s new bail regime;
• Women are now more likely to spend ‘dead time’ on remand and receive ‘time served’ prison sentences;
• High bail thresholds can create pressure to finalise or ‘plead out’ matters in court; and
• Magistrates continue to exercise discretion when making decisions about bail but are restricted by the expanded tests embedded in the Bail Act 1977 since 2018.

A significant and emergent theme from the study is the nexus between family violence, homelessness, and women’s criminalisation. The study found that homelessness is arguably the most significant barrier for women seeking bail. And for many women, their homelessness is a direct result of family violence. Yet during the researchers’ observations in the BaRC, a woman’s history of family violence was rarely mentioned in her application for bail. The apparent connections between these issues – and their significance in women’s bail and remand outcomes – highlight a gendered injustice that urgently requires further attention and research.

Based on the findings of the study, the authors of the report call for:

• Divestment from policing and prisons;
• Investment in long-term housing for women experiencing violence and poverty;
• Renewed understanding of illicit drug use, mental ill-health and interpersonal violence as social and health issues requiring appropriate community-based support and services;
• Investment in holistic wrap-around community-based support services for women experiencing or at risk of criminalisation;
• A review of bail laws to bring them in line with the principle that imprisonment should only be used as a last resort; and
• Any decreases in prisoner numbers observed during the COVID-19 pandemic should be sustained and extended into the future.

This article includes excerpts from the report available online: E Russell, B Carlton, D Tyson, H Zhou, M Pearce and J Faulkner, ‘A Constellation of Circumstances’: The Drivers of Women’s Increasing Rates of Remand in Victoria (Report, 2020).

Dr Emma Russell is a senior lecturer in Crime, Justice & Legal Studies at La Trobe University.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Criminal justice women's rights