The Australian female prison population is growing at a much faster rate than the male prison population, and the proportion of First Nations women in custody is growing even more quickly. Part of this growth can be attributed to a growing remand population – like in Victoria where, following 2018 bail reform, more and more women are being remanded.
Victorian Bail Laws
In Victoria, 2018 reforms introduced three separate bail tests depending on the offending alleged:
- There is a presumption that the accused is entitled to bail;
- The accused must show that compelling reasons justify granting of bail; or
- The accused must show that exceptional circumstances justify granting of bail.
In all bail applications, the decision maker must refuse bail if there is unacceptable risk.
There are many offences that attract either the compelling reasons test or the exceptional circumstances test. Notably, a person who is charged with repeated bail offences can be subject to the exceptional circumstances test. This test is difficult to meet, which results in many people being remanded despite posing little risk to the community, and their offending being low level.
Perhaps unsurprisingly, since 2018 Victoria's remand population has grown, with women particularly affected. The recent coronial inquest into the death of Veronica Nelson found that the impact of Victorian bail laws "are disproportionately experienced by individuals already marginalised and vulnerable, particularly Aboriginal women."1
Pregnancy, Children, and Mothers on Remand
Women in custody have unique health and wellbeing concerns and may require gender-specific care, particularly around pregnancy. In 2017, there were 117 women who were pregnant upon entering custody in Australia, and 25 women gave birth in custody.
There are programs in place to accommodate children with their mothers in custody in Victoria. While this is certainly preferable to being the prospect of being separated, it is clearly not analogous to being in the community. Women on remand are denied access to the support and social networks that are critical to mothers, and their children are denied the opportunity to grow up free from the confines of a carceral environment.
Section 3AAA of the Bail Act 1977 (Vic) sets out a range of factors that must be taken into account as surrounding circumstances, including the applicant's personal circumstances, home environment, and any special vulnerability. A woman's pregnancy, young children, or other childcare responsibilities could certainly be advanced by her lawyer in the context of her surrounding circumstances and as part of a compelling reasons or exceptional circumstances argument. Victorian law, however, does not recognise gender as a discrete factor to be taken into consideration in bail decisions, relying on the willingness of decision makers to take these unique factors into account.
Family Violence and Bail
In Australia, family violence is the principal cause of women and children leaving their housing, meaning that housing is an issue that can disproportionately affect women seeking bail.
While a variety of factors must be taken into consideration when determining whether a person should be granted bail, housing is one that is often critical. Victorian lawyers "have identified homelessness as the most significant barrier that women encounter when applying for bail."2 Without a stable and safe place to stay, decision makers are likely to question an applicant's ability to comply with bail.
The Impact of Custody on Women
Many women who are remanded do not end up being sentenced to a term of imprisonment. In addition to the punitive experience of simply being in prison, women on remand face challenges in accessing the programs available to sentenced prisoners and are at heightened risk of losing their housing and other supports that they have in place in the community during their time in custody.
Bail laws are intended to protect the community, not penalise an accused who is yet to be proven guilty. However, it is difficult to argue that remand does not have a punitive effect for women who have been unable to satisfy the relevant bail threshold but do not pose a real risk to the community.
A Recent Case Study in Darwin, NT
Earlier this month, a court in Darwin heard that a woman on remand, charged with a range of offences, was faced with being forced to deliver her baby early as a result of "prison management issues" before being removed from her baby within days.3 In a bid to avoid a situation that would be unimaginable to most people, her lawyers applied for bail.
Following an application involving strict conditions, bail was granted. The prosecution sought a stay to contest the decision, and after hearing reassurances from the Chief Health Officer that the applicant would not be forced to give birth early, the Supreme Court refused bail.
In some good news for both mother and baby, following this outcome the prison confirmed that the specialised unit allowing babies to be kept with their mothers will be reopened, meaning the pair won't be separated.
Sadly, these kind of complex bail applications involving women aren't unique to the Northern Territory. There are many occasions when women have suffered as a result of bail being refused in Victoria and all over Australia.
Bail Laws Must Treat Women Fairly
Bail laws must operate fairly and according to the actual level of danger the community faces in each case. This is the only way the criminal justice system can treat women in a just way. In Victoria, this means reinstating a presumption in favour of bail.
Following the inquest into the death of Veronica Nelson, the Victorian government has announced that they will change bail laws – but what those changes will involve is still unclear. However, what is clear is that where women apply for bail, it is critical that outcomes reflect the true risk they pose to the community, and the risks posed to themselves and their children while being held on remand.