JOINT MEDIA RELEASE 29 July 2021
Victorian Aboriginal Legal Service
Fitzroy Legal Service
Human Rights Law Centre

The Andrews Government must urgently reform its punitive bail laws if it is to meet the justice targets it signed on to in the new Closing the Gap Agreement last year.

The first Annual Data Compilation Report mapping progress under the National Agreement on Closing the Gap was released today by the Productivity Commission, providing a point-in-time snapshot of measurement under the National Agreement on Closing the Gap. Australia is not on track to meet the already unambitious targets relating to incarceration of Aboriginal people.

This month we mark four years since the Andrews Government created new bail laws which have seen a surge in the prison population. The impact has been particularly devastating for Aboriginal women, who have become the fastest growing group to be imprisoned in Victoria – nearly 6 in 10 are on remand, having been convicted of nothing. Many are imprisoned on remand for minor breaches of bail conditions and low level offences such as non-payment of fines, shoplifting and possession of small quantities of marijuana. These types of offences don’t result in a prison term.

In Victoria, 1752.8 Aboriginal and Torres Strait Islander adults per 100,000 are imprisoned, compared to 124.6 non-Indigenous adults. In Victoria, 15.3 Aboriginal and Torres Strait Islander children per 10,000 are imprisoned, compared to 1.7 non-Indigenous children.

While there was a decrease in 2020 due to the pandemic, the long-term trend of rapidly increasing incarceration of Aboriginal and Torres Strait Islander people will resume if the Andrews Government’s bail laws are not reformed urgently. Between 2015 and 2019 the rate of Aboriginal and Torres Strait Islander adults in prison in Victoria increased by 60%.

The Royal Commission into Aboriginal Deaths in Custody recommended increasing access to bail. The Andrews Government has done the reverse, and made bail much harder to access.

The Andrews Government could address this mass-imprisonment crisis today by:

  • Repealing the reverse-onus provisions in the bail laws;
  • Creating a presumption in favour of bail for all offences, with the onus on the prosecution to demonstrate that bail should not be granted due to there being a specific and immediate risk to the physical safety of another person or the person posing a demonstrable flight risk; and
  • Repealing the offences of committing an indictable offence while on bail, breaching bail conditions and failure to answer bail.

The Victorian Aboriginal Legal Service sent an open letter (signed by 55 organisations) to Ministers Symes, Hutchins and Williams during Reconciliation Week and, subsequently, an expert petition (signed by over 250 experts) calling for urgent bail reform. We are still waiting for an answer.

Quotes Attributable to George Selvanera, CEO of Victorian Aboriginal Legal Service

“The Government often notes that the massive explosion of people in custody is an unintended consequence of bail laws changed in response to the horrific Bourke Street massacre. However, those consequences are, by now, well-known. A Government decision to continue business as usual is a deliberate and cruel choice to traumatise Aboriginal women and other more vulnerable people and their families through unnecessary, costly remand and to neglect its commitments under the Closing the Gap Agreement.”

Meena Singh, Legal Director, Human Rights Law Centre:

“Victoria has some of Australia’s most dangerous bail laws that are needlessly removing Aboriginal and Torres Strait Islander women from their families. These punitive laws are funnelling women into prisons to be warehoused on remand before they have been sentenced for a crime. Time is overdue for the Andrews government to fix Victoria’s broken bail laws.”

Media Contacts:

Patrick Cook, VALS: pcook@vals.org.au, 0417 003 910

Evan Schuurman, Human Rights Law Centre: evan.schuurman@hrlc.org.au, 0406 117 937

To determine eligibility VALS will:

  • enquire as to the Aboriginality of the client;
  • enquire as to perceived or actual conflict of interest;
  • enquire as to compliance with the Means Test;
  • consider the merit of the client’s matter.

Aboriginality
The first time someone uses VALS they must provide proof of their Aboriginality using the Confirmation of Aboriginality Form. This form must be signed and sealed by the Officer Bearers of a recognised Aboriginal and Torres Strait Islander organisation.

Conflict
VALS must not decline to provide assistance to an eligible person, group or body on the grounds that the other party to the matter is an Aboriginal and/or Torres Strait Islander person. In circumstances where the relationship between the parties to a case would result in a conflict of interest, that conflict must be managed in accordance with the Victorian Legal Practice requirements and Policy Direction 9 – “Managing Conflicts of Interest” – of the Attorney-General’s Department Policy Directions for the Delivery of Legal Aid Services to Indigenous Australians (2008).

VALS will not act if a conflict of interest exists. A conflict of interest may be an ‘actual’ conflict of interest or a ‘perceived’ conflict of interest. A conflict of interest can involve:

  • Clients who have different interests, such as VALS may have advised or acted for person “A” (old client) who has an interest that conflicts with person “B” (intended new client).
  • Clients and VALS, such as a VALS staff member or Board Member has an interest that conflicts with an intended new client. Conflicts involving client-provider relationships are:
    •  An owner, director, manager, employee, contractor or agent of VALS and/or;
    • An employee of the Department; and/or
    • A close relative (spouse, de facto, parent, sibling or child) of any of the above.

VALS provides assistance on a first in best dressed basis (i.e. provide direct assistance to the party who approaches VALS first). VALS will refer the other party to another legal service provider or “brief out” the client to a private lawyer (subject to the client meeting the requirements for brief outs). Where appropriate, VALS may act for one client and provide assistance by brief out to the other.

Means Test
Where a person seeks casework assistance, VALS must ensure that applicants satisfy the Means Testing provisions of the Policy Directions.

VALS must ensure that all applicants for legal casework assistance satisfy one or more of the following requirements:

  • Under 18 years of age;
  • Main source of income comes from Community Development Employment Projects; (CDEP) participant wages or Centrelink (or equivalent) benefits; or
  • Gross household income is under $52,000 per annum.

Note: Household income includes the income of your partner, spouse, relative including an adult child who you live with.

The Means Test will be administered in two parts:

Part A: Requires the completion of a small number of questions relating to the applicant’s personal circumstances and income level.

Part B: Is required where applicants do not satisfy the criteria in Part A. It requires more detail about the applicant’s income, assets, employment status and number of dependents.

Merit Test
Discretion will be used to determine if a particular case has merit.