Australia
Australian Law Reform Commission (ALRC) Pathways to justice Inquiry into the incarceration rate of Aboriginal and Torres Strait Islander Peoples (2017).
See chapter 5 regarding bail.
5.1 Up to one third of Aboriginal and Torres Strait Islander people in prison are held on remand awaiting trial or sentence. A large proportion of Aboriginal and Torres Strait Islander people held on remand do not receive a custodial sentence upon conviction, or may be sentenced to time served while on remand. This particularly affects female Aboriginal and Torres Strait Islander prisoners, and suggests that many Aboriginal and Torres Strait Islander prisoners may be held on remand for otherwise low-level offending.
5.2 Irregular employment, previous convictions for often low-level offending, and a lack of secure accommodation can disadvantage some accused Aboriginal and Torres Strait Islander people when applying for bail. Furthermore, when bail is granted, cultural obligations to attend sorry business following a death in the family or community, or to take care of family may conflict with commonly issued bail conditions – such as curfews and exclusion orders – leading to breach of bail conditions, revocation of bail and subsequent imprisonment. This issue has continued despite existing laws and legal frameworks that enable some bail authorities to take cultural considerations into account.
5.25 Aboriginal and Torres Strait Islander women are a fast growing group within the remand population. For example, the Inspector of Custodial Services in WA reported that WA had seen a 150% growth in Aboriginal and Torres Strait Islander women being held on remand from 2009 to 2016, describing the statistic as ‘especially sharp and alarming.’ It was reported that in Victoria in 2012, 60% of Aboriginal and Torres Strait Islander women held on remand were released without sentence.’ (references removed).
5.32 ... Finding suitable accommodation was especially difficult for women wiht substance dependencies resulting in both Aboriginal and Torres Strait Islander women and non-Indigenous women being placed in custody for therapeutic reasons, designed to stabilise their addictions and remove them from unsafe environments that may include family violence. (references removed).
5.33 Language barriers have been identified as another factor that can result in Aboriginal and Torres Strait Islander people being denied release on bail. In their submission to this Inquiry, ALHR identified that language barriers can negatively affect bail determinations for defendants who are unable to accurately outline their living arrangements, support networks, cultural obligations and other relevant matters to the court. (references removed).
Australian Law Reform Commission and New South Wales Law Reform Commission, ‘Family Violence – A National Legal Response’, ALRC Report 114; NSWLRC Report 1280 (2010).
Chapter 10 deals with ‘Bail and Family violence’. The interaction between bail conditions and protection order conditions is considered from p 420. The Commissions note that bail conditions can be imposed in parallel to protection order conditions. Bail conditions and protection order conditions should be consistent because inconsistency increases confusion which increases the likelihood of breach. This compromises victim safety and could also have serious consequences for accused persons.
The report notes that while bail conditions simply requiring an accused to abide by existing protection order conditions avoids inconsistencies, this formula should not be used at the expense of victim safety (p 422).
The Commissions commented that upon granting bail, judicial officers should consider whether to also grant a protection order because bail conditions do not serve the same purpose as protection order conditions and may not be able to adequately protect the victim (p 422 & 424-425).
The issue of informing victims about bail decisions is considered from p 425.
Law Reform Commission of Western Australia, Enhancing Family and Domestic Violence Laws, Report No 104 (2014).
Chapter 4 discusses bail from p 134. In family violence matters, the court will often impose ‘protective bail conditions’. The report notes that an accused may be subject to protective bail conditions and a protection order concurrently. The Commission’s view was that protection order conditions should be considered in addition to protective bail conditions and pointed out that once a charge is dismissed or otherwise dealt with, bail conditions will lapse. This leaves no ongoing legal protection for the victim (p 134). The Commission emphasised the importance of thorough risk assessment when determining bail in the domestic and family violence context, noting ‘In cases where an accused seeks a relaxation of protective bail conditions in order to enable contact to occur between the accused and the victim, it is necessary for the court to properly assess the risk to the safety of the victim before making a decision’. This may involve attaining a bail risk assessment report (p 137). Therefore, it is clear that the imposition of appropriate bail conditions can reduce the risk of harm to victims. The Commission also noted that it is important that protective bail conditions and protection order conditions are consistent so as to avoid confusion and unintended breaches (p 135).
Ng, Emily and Heather Douglas, ‘Domestic and Family Violence and the Approach to Bail’ (2016) 34(2) Law in Context 36-57.
This article examines the different approaches taken to bail in domestic violence legislation and cases across Australia.
The authors note there is a ‘patchwork’ approach to bail and family violence between jurisdictions. Some jurisdictions specifically define domestic violence offences for the purposes of bail, while other jurisdictions do not give domestic and family violence special status. Bail conditions are considered from p 51. The authors note that it is important to avoid conflict between bail and protection order conditions because conflict increases the likelihood of breach (p 51). Two common types of bail conditions in domestic and family violence matters (exclusion conditions and perpetrator programs) are discussed.
Exclusion conditions are problematic when the accused has no alternative accommodation. An integrated response is required. This ‘can be achieved through police training and the establishment of collaborative relationships between police and support services, rather than by imposing a legislative duty on the police to take reasonable steps to secure accommodation’ (p 53).
The authors note that ‘in cases concerning family violence, the safety of women and children should always be a key consideration in the bail response.’ (p 57).
Queensland Police Service, ‘The Domestic and Family Violence GPS-Enabled Electronic monitoring Technology, Evaluation Report, April 2019, Government of Queensland.
This report presents the findings of a trial of GPS tracking for family violence offenders and victims in Queensland. The trial assessed the effectiveness, reliability and responsiveness of GPS-enabled technology to track an individual accurately and activate an alert in the event of a pre-programmed zone being breached. The GPS-enabled technology was tested in different geographical areas and with police personnel rather than actual offenders and victims. Thirty-five tests were carried out, with the technology failing to respond in 26% of cases. The technical issues are discussed in more detail. Overall, the findings demonstrate that electronic monitoring does not provide an effective risk-mitigating solution for high-risk perpetrators and is not a reliable substitute for perpetrator case management. However, it may be of use in some lower-risk cases, in conjunction with other measures. This trial was a suggestion of the 2015 Queensland Special Taskforce on Domestic and Family Violence, which noted how little was known about electronic monitoring programs.
Richards, Kelly and Lauren Renshaw, ‘Bail and Remand for Young People in Australia: A National Research Project’ (2013) (Research and Public Policy Series No 125, Australian Institute of Criminology).
This report, which deals extensively with bail, discusses domestic violence offences from p 64. ‘In this study, domestic violence emerged as one offence in particular that may impact on rates of young people on custodial remand.
Russel, E., Carlton, B. and Tyson, D. (2022) ‘It’s a gendered issue. 100 per cent”: How tough bail laws entrench gender and racial inequality and social disadvantage’, International Journal for Crime, Justice and Social Democracy 11(3).
Abstract (extract): Women’s rates of remand, or pre-trial detention, have grown dramatically in Australia and the rates at which Aboriginal and Torres Strait Islander women are incarcerated without conviction are particularly high. This article presents findings from research on the drivers behind women’s increasing rates of custodial remand in Victoria – a jurisdiction that has significantly restricted access to bail through legislative reforms. Drawing on data derived from interviews with criminal defence and duty lawyers, we outline how bail and remand practices systematically disadvantage women experiencing housing insecurity and domestic and family violence (DFV), increasing their risk of being trapped in longer-term cycles of incarceration. Our analysis reinforces the need to move away from ‘tough on crime’ approaches to bail. It also highlights unintended consequences of DFV reforms, including further marginalising and punishing criminalised women who are victim-survivors.
Victorian Law Reform Commission (VLRC), Review of the Bail Act: Final Report (2007) 120.
See at p 74 which discusses ‘Victims’ Views on Safety and Welfare’. It notes, ‘if the offence is one of family violence, police should set bail conditions that ensure the safety of victims’. See also from p 120 where the report discusses how appropriate bail conditions can reduce the risk of further harm to victims.
However, the Commission was concerned (particularly in relation to police bail) about ‘reports of police imposing inappropriate and unnecessarily onerous bail conditions. Such conditions include blanket restrictions on travel by public transport, broad geographic exclusion zones, and abstinence conditions without referral to any support services. Anecdotally, it appears that many of the most inappropriate bail conditions are imposed by police. Accused people may feel pressured to accept overly onerous conditions to be released, putting them at increased risk of breach. Breach may ultimately lead to remand, which might have been avoided if more appropriate conditions were initially imposed, together with referral to support services’ (p 62).
Yoorrook Justice Commission, Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems (2023)
See chapter 10: Bail
(Although note Victoria’s bail laws were changed in 2023).
‘Numerous submissions emphasised the significant harms caused by being remanded in custody. Imprisonment for any length of time damages families and prevents parents from being able to provide stable homes for their children, disconnects Aboriginal people from their culture, causes housing and employment instability, interrupts recovery and rehabilitation effors, and leads to cycles of further imprisonment.’ (p. 296). (references removed).
‘The evidence presented in numerous submissions demonstrated that Victoria’s bail laws operate in a discriminatory way against First Peoples. The evidence suggests this is a result of myriad factors, including the over-policing of Aboriginal communities, police misidentification of family violence perpetrators, the economic and social disadvantage experienced by First Peoples, and discriminatory attitudes of police and judicial officers.’ (p. 297) (references removed).
International
Sadusky, Jane M, ‘Pretrial Release Conditions in Domestic Violence Cases: Issues and Context’ (2006) Battered Women’s Justice Project.
While this paper discusses the American context, some of the commentary has broad relevance to the Australian context.
‘This paper explores the issues related to pretrial release, highlights the experiences of several communities, and provides guidelines to communities for examining this aspect of criminal case processing in domestic assault cases’ (p 5).
The authors note: ‘The question of pretrial conditions in domestic violence cases is one of balance, balance between constitutional rights of the accused and protection of victims of crime, between safety and accountability, between ensuring appearance at trial and protecting others from harm, between a consistent response and the unique aspects of each case, each person, and sometimes the balance between space in the jail and the goal of safety’ (p 5).
See also at p 11 – ‘While the general standards of pretrial release set a foundation that permits close attention to the safety of any person or the public, a judicial officer may be reluctant to invoke processes or conditions that account for the specific context of domestic violence crimes. Yet domestic violence is a pattern crime and research has increasingly identified key factors associated with dangerousness, including prior history of domestic violence; estrangement, separation or divorce; obsessive, extreme jealously, escalating violence; access to guns; use of or threats with weapons; serious injury in prior incidents of abuse; threats of homicide and suicide; forced sex; stalking; prior police involvement; and, drug or alcohol use…Satisfying the second prong of the purpose of bail – “protect the community, victims, witness or any other persons” – is difficult without some level of inquiry into these aspects of dangerousness’.
The approach to bail in domestic and family violence related cases varies between Australian jurisdictions (see table below). In a number of jurisdictions, bail laws have incorporated special provisions that either displace or reverse the general presumption in favour of bail (see table below). In all Australian jurisdictions the safety and protection of the victim and any children or other people at risk is a key consideration in the decision to grant bail.
Where a judicial officer considers that a grant of bail is appropriate in a case where a domestic and family violence related offence is alleged, bail conditions may be imposed to minimise the risk of further harm to the victim and any children or other people at risk. For example the accused may be monitored by GPS. If GPS monitoring is used, consider imposing a significant exclusion zone (eg several kilometres) around the victim’s home so that once police are alerted to the accused’s breach they have sufficient time to attend directly at the victim’s address. Further conditions may include prohibiting the accused from contacting, harassing, threatening or intimidating the victim or others; or conditions requiring the accused to vacate the family home (exclusion/ouster), or to not go within a certain distance of the victim’s home, or to undergo treatment or counselling (perpetrator interventions). Bail conditions should be carefully balanced having regard, along with other relevant matters, to the circumstances of the accused and the victim, the accused’s history of violence towards the victim, and the fact that the conditions are imposed in a context where there is not yet a finding of guilt. For example, a condition forcing an unwilling accused to participate in a perpetrator intervention program may increase the risk of breaching bail and the later imposition of a custodial sentence. When determining the most appropriate bail conditions in a particular case, judicial officers should ensure where possible that they have access to all available information regarding, for example, existing orders and prior convictions; and, if necessary, make enquiries of the prosecution.
There may be particular considerations relevant to bail where the victim or accused is from a vulnerable group.
Aboriginal and Torres Strait Islander people may experience particular difficulties in obtaining bail or meeting bail conditions. For example, an accused may be denied bail because of lack of legal of representation, insufficient assets to provide a surety, no stable address, or absence of a responsible person to care for children; and yet being remanded in custody may cause further disadvantage and harm to an accused who is detained far from community and family or has problems with . In ordering bail conditions in these circumstances, it may be appropriate for the judicial officer to consider an accused’s kinship and family ties with a particular location and the availability of community or family-based support that may be engaged to ensure that bail conditions are observed. The safety and protection of the victim and other people may override these considerations.
Bail may be imposed alongside a protection order. It is important that bail conditions and protection order conditions are consistent (or, if different, not inconsistent) as inconsistency may increase confusion and the likelihood of breach. Bail conditions may also be imposed when there are also child protection orders or family law orders in place. Such orders should also be considered in determining appropriate bail conditions and inconsistency should be avoided where possible.
A bail condition may require an accused to comply with the conditions of a protection order, with the consequence that a breach of the protection order amounts to a breach of bail. Where there is no protection order in place, and the bail conditions alone may not protect a victim adequately, it may be appropriate for the judicial officer, where legislation permits, to also issue a protection order.
Where an accused applies for bail upon being charged with a breach of a protection order, the judicial officer should consider the risk of breach of bail in light of the alleged breach of the protection order. Where an accused’s conduct amounts to a breach of both a bail order and a protection order, and the accused applies for bail, the judicial officer should consider the possibility of heightened risk of harm to the victim and any children or other people at risk.
It is important that those affected by the bail conditions understand the nature and effect of the bail decision, and that any order, or any condition of an order, can only be varied or revoked by the court, not by agreement between the accused and victim or other individuals. The victim and those affected by bail conditions should be made aware of the grant of bail and the conditions of the bail granted to the accused.
Jurisdiction | Relevant legislation |
|---|---|
Australian Capital Territory | Bail Act 1992 ss 9B(b)(iv)-(vi); 25(4) (f)(i)-(vi) |
New South Wales | Bail Act 2013 ss 16A, 16B, 17 |
Northern Territory | Bail Act 1982 ss 7A(1)(dd), (dh); 27A(1) |
Queensland | Bail Act 1980 s 16(2)(f) |
South Australia | Bail Act 1985 s 10A(2)(ba); 11(2)(a)(ii) |
Tasmania | |
Victoria | Bail Act 1977 s 5AAAA |
Western Australia | Bail Act 1982 Sch1, Part D (2); (2a); (2AB); (2AC) |
The approach to bail in domestic and family violence related cases varies between Australian jurisdictions (see table below). In a number of jurisdictions, bail laws have incorporated special provisions that either displace or reverse the general presumption in favour of bail (see table below). In all Australian jurisdictions the safety and protection of the victim and any children or other people at risk is a key consideration in the decision to grant bail.
Where a judicial officer considers that a grant of bail is appropriate in a case where a domestic and family violence related offence is alleged, bail conditions may be imposed to minimise the risk of further harm to the victim and any children or other people at risk. For example the accused may be monitored by GPS. If GPS monitoring is used, consider imposing a significant exclusion zone (eg several kilometres) around the victim’s home so that once police are alerted to the accused’s breach they have sufficient time to attend directly at the victim’s address. Further conditions may include prohibiting the accused from contacting, harassing, threatening or intimidating the victim or others; or conditions requiring the accused to vacate the family home (exclusion/ouster), or to not go within a certain distance of the victim’s home, or to undergo treatment or counselling (perpetrator interventions). Bail conditions should be carefully balanced having regard, along with other relevant matters, to the circumstances of the accused and the victim, the accused’s history of violence towards the victim, and the fact that the conditions are imposed in a context where there is not yet a finding of guilt. For example, a condition forcing an unwilling accused to participate in a perpetrator intervention program may increase the risk of breaching bail and the later imposition of a custodial sentence. When determining the most appropriate bail conditions in a particular case, judicial officers should ensure where possible that they have access to all available information regarding, for example, existing orders and prior convictions; and, if necessary, make enquiries of the prosecution.
There may be particular considerations relevant to bail where the victim or accused is from a vulnerable group.
Aboriginal and Torres Strait Islander people may experience particular difficulties in obtaining bail or meeting bail conditions. For example, an accused may be denied bail because of lack of legal of representation, insufficient assets to provide a surety, no stable address, or absence of a responsible person to care for children; and yet being remanded in custody may cause further disadvantage and harm to an accused who is detained far from community and family or has problems with . In ordering bail conditions in these circumstances, it may be appropriate for the judicial officer to consider an accused’s kinship and family ties with a particular location and the availability of community or family-based support that may be engaged to ensure that bail conditions are observed. The safety and protection of the victim and other people may override these considerations.
Bail may be imposed alongside a protection order. It is important that bail conditions and protection order conditions are consistent (or, if different, not inconsistent) as inconsistency may increase confusion and the likelihood of breach. Bail conditions may also be imposed when there are also child protection orders or family law orders in place. Such orders should also be considered in determining appropriate bail conditions and inconsistency should be avoided where possible.
A bail condition may require an accused to comply with the conditions of a protection order, with the consequence that a breach of the protection order amounts to a breach of bail. Where there is no protection order in place, and the bail conditions alone may not protect a victim adequately, it may be appropriate for the judicial officer, where legislation permits, to also issue a protection order.
Where an accused applies for bail upon being charged with a breach of a protection order, the judicial officer should consider the risk of breach of bail in light of the alleged breach of the protection order. Where an accused’s conduct amounts to a breach of both a bail order and a protection order, and the accused applies for bail, the judicial officer should consider the possibility of heightened risk of harm to the victim and any children or other people at risk.
It is important that those affected by the bail conditions understand the nature and effect of the bail decision, and that any order, or any condition of an order, can only be varied or revoked by the court, not by agreement between the accused and victim or other individuals. The victim and those affected by bail conditions should be made aware of the grant of bail and the conditions of the bail granted to the accused.
Jurisdiction | Relevant legislation |
|---|---|
Australian Capital Territory | Bail Act 1992 ss 9B(b)(iv)-(vi); 25(4) (f)(i)-(vi) |
New South Wales | Bail Act 2013 ss 16A, 16B, 17 |
Northern Territory | Bail Act 1982 ss 7A(1)(dd), (dh); 27A(1) |
Queensland | Bail Act 1980 s 16(2)(f) |
South Australia | Bail Act 1985 s 10A(2)(ba); 11(2)(a)(ii) |
Tasmania | |
Victoria | Bail Act 1977 s 5AAAA |
Western Australia | Bail Act 1982 Sch1, Part D (2); (2a); (2AB); (2AC) |