In 2017-18, in a knee-jerk reaction to an exceptional event, the Victorian Government overhauled the Bail Act. It was acknowledged at the time that the bail laws were already the most restrictive in Victoria, and the purpose of reform was to make them even more so. It was acknowledged that the changes would result in more people in prison. And that has indeed come to pass.
We must ask whose interests these laws really serve.
Victoria's commitment to mass incarceration
In January 2017, James Gargasoulas deliberately drove his car down Bourke Street and killed 6 people, injuring many more and frightening the whole city. Within three days, the Government proposed bail reform as the solution to prevent such things from happening in the future (there have been two other instances of people driving down Bourke street since Gargasoulas). Almost four years later, a Coroner's report was released detailing the causes of that tragic event. What is apparent from the Coroner's report is that the Bail law was not the problem. Bail reform was never the answer.
To be clear, the bail reforms make it harder for people to get bail after they have been charged with an offence. Imprisonment is the harshest penalty known to the law, and remanding a person in custody means putting someone in prison on the strength of a police charge. With delays in the courts being what they are, a person can spend months or years in prison if they avail themselves of their right to defend their innocence. It is a travesty of justice that defence lawyers now find themselves having to advise clients to plead guilty for the sole purpose of getting out of gaol.
The bail reforms are the most recent in a series of legislative changes to the criminal justice system dedicated to putting more people in prison. In 2016, a suit of reforms amended the Sentencing Act to ensure that people who would not otherwise be sentenced to gaol, were. Before that, the parole system was re-organised in another knee-jerk reaction to an exceptional offence, to ensure that prisoners were less likely to be released in the community on parole for supervised rehabilitation.
Imprisonment is not protection
The question we must ask is why the government is committed to incarcerating ever greater numbers of Victorians? Incarceration, even for a short time, traumatises people. People may lose their homes, their jobs, their relationships and even their children. It increases likelihood of recidivism. And the state pays $323.45 a day to achieve this. In some cases, people go to jail who have caused harm to others. In many cases, people are going to jail who have not harmed anyone.
The government promoted the recent bail reforms as necessary for community safety. It is hard to argue against the desirability of "community safety", and anyone finding themselves challenging these reforms risks being attacked as advocating for more criminals on the streets. This is of course a wilfully ignorant argument to make.
Those of us opposed to the current bail laws simply want community protection to extend to the whole community—even the vulnerable or marginalised who are more likely to be incarcerated under these laws for unsubstantiated charges, and minor or even victimless offending.
In challenging the current bail laws, we are rejecting the notion that community safety is best served by locking innocent people up in gaol to prevent further offending. This is not a radical perspective. It is, however, radical that the state in a supposedly liberal society would use the criminal justice system to (a) systematically incarcerate people without a finding of guilt; and (b) do so in order to "protect" others, even in cases where there may not be an unacceptable risk of any further offending.
"Community safety" is a commitment to police, not us
"Community safety" has been given a perverse meaning by Victorian politicians in the context of criminal justice reform. It should mean increased investment in mental health services, access to drug treatment, support for young people, people struggling with homelessness, unemployment, discrimination or those fleeing domestic violence. It should amount to a commitment by the government to research the causes of crime, and develop effective long-term and evidence-based strategies to reduce it.
But that is not what we are seeing.
Consider the annual Community Safety Statement, initiated in 2016-17, outlining the Government's crime reduction strategy. The 2017 Statement is decorated by images of the Victoria Police and their vehicles. Its content is developed by the Minister of Police and the Victoria Police. In consultation with no one. The recommendations are, unsurprisingly, focussed exclusively on resourcing the police.
The 2017/18 budget overview refers to the Community Safety Statement. Under the banner of "Safer Communities", it boasts "Victoria Police will get the powers and resources they need – everything they have asked for to stop crime and reduce harm." (Emphasis added) The Victoria Police were allocated a whopping $2 billion dollars that year. A further $814 million dollars was to be spent expanding prisons.
By comparison, $41.1 million dollars was allocated to rehabilitation programmes and services, and a meagre $29.5 million was directed to Legal Aid and community legal centres.
Let me say that again — $2 billion dollars to police. $29.5 million to those trying to protect people from the police. And the $814 million dollar investment in prisons points to the expected outcome of that imbalance. It is hard not to conclude from the relatively tiny allocation to rehabilitation services that the Government has a long-term commitment to this arrangement.
Are we safer now than we were before?
The 2018 Community Safety Statement celebrates a drop in crime between 2016-2017. Indeed, the Crime Statistics Agency records that the absolute number of offences committed in 2016 was 550,987 and the rate of offending per 100,000 people was 8,925.5. In 2017, the number was 503,394 and the rate of offending was 7,963.1. A victory was surely achieved—although the reasons for that decrease have not been studied.
Regardless of the causes, it was short lived. Since 2018, the crime rate and absolute number of offences have been steadily on the rise. In 2020, the absolute number of offences almost matched what it was in 2016—548,354. The rate of offending has gone from 7,963.1 in 2017 to 8,177 by December 2020. It is notable that since the bail reforms came into force in 2018 to protect the community, the crime rates have only gone up.
We need real solutions
The government is deceiving us when it sells us increased police presence and mass incarceration as solutions to crime. What we need is our government to consider the real drivers of crime, and then have an informed discussion with stakeholders across the community about what research and resources are required to prevent it.
Crime reduction should not be used as an opportunity for divisive political rhetoric that creates artificial categories of "us the community" and "them the criminals." Solutions to reduce crime should not be treated as exclusively a police issue.
Treating crime reduction as a police issue is leading to reforms that are warping the criminal justice system. A criminal justice system is meant to adjudicate independently between police and accused, protect the rights of the accused, and impose an appropriate sanction on individuals for harms done. A criminal justice system geared towards preventing the possibility of future crime is not a creature that lives comfortably in a liberal democracy.
As a practicing lawyer, the vast majority of my clients are well meaning people who are shocked and distressed to find themselves on the receiving end of a criminal charge. It is appalling that the government—and the police—are enthusiastic to exclude these people from "the community", undermine the principled foundations of the criminal justice system, and relegate undeserving people to prison.
The United States is alive to the consequences of putting too much faith in policing. "Defund the Police" means using some of that $2 billion to reduce crime in ways that also reduces imprisonment. This is an entirely achievable goal, but it is not going to happen if the police are the only ones consulted.
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