top of page

The Criminal 'Unjust' System: An Expansion of the Incarceration Complex through Bail Reforms

Updated: Mar 2, 2022

Words by Vivian Lai-Tran

 

CONTENT WARNING: Mentions sexual assault, injury, murder, stalking, and drug use.


I INTRODUCTION

Prominent U.S. prison abolition activist Professor Angela Davis explains that ‘prisons do not disappear problems, they disappear human beings’. [1] Her potent words expose the inevitable pitfall when public policy and legislation attempts to remedy social problems through the expansion of the incarceration complex. Across the Pacific Ocean, Australia’s continued use of political scapegoats through ‘tough on crime’ rhetoric appeases calls for community safety; this dynamic is most clearly illustrated in the Victorian bail reforms introduced in 2017-18 which further restricted eligibility for bail. [2] Debates centering concerns for community safety regarding pre-trial detention neglect a fundamental truth: that our incarcerated population is predominantly composed of the very communities failed by the State.


Law reform bodies, local advocates, and academics have corroborated evidence which highlights the damaging long-term implications of remanding people away from their communities. [3] Most notably, vulnerable communities have been further marginalized and their needs sidelined in Parliamentary debates and media discourse, as those groups are over-represented in the criminal justice system and the bail system further compounds their disadvantage. [4] Specifically, First Nations Peoples are incarcerated at a disproportionate rate despite making up only 2% of the population overall; thus, these groups are most affected by the Bail reforms in practice despite amendments to the Bail Act 1977 (Vic) designed to take into account First Nations origins. [5] As I will discuss, these inadequacies in the bail system should be addressed, and steps taken towards reinvestment in community services in the long-term that can effectively support vulnerable communities and prevent contact with the criminal justice system.


II REMAND AND BAIL PURPOSES

State Parliament of Victoria debates surrounding new bail legislation in 2017 and 2018 were embroiled in concerns for community safety and protection, in the aftermath of two cases of egregious crimes committed by individuals who were on bail at the time of offending – James Gargasoulas’ mass murder of six people on Bourke Street Mall, and Sean Price’s murder of Masa Vukotic. [6] Restrictive bail laws have been accompanied by broader changes in practices that have led to escalating remand rates, generated by concerns about community safety that now dominates discussions of bail in Victoria. [7] However, community protection is only one of the three broad goals that custodial remand seeks to achieve, including ensuring the integrity and credibility of the justice system and safeguarding the best interests of the defendant. [8] Although the recent reforms set out guiding principles in s 1B of the Bail Act, including to ‘maximise community safety’ and ‘take account of the presumption of innocence and right to liberty’, the amendments impose more stringent considerations to apply for bail. [9]


As a result of the 2017-18 reforms, remand has become the default when contacting the criminal justice system and applying for bail. Starting with the reverse onus test for Schedule 2 offences (such as causing serious injury intentionally or recklessly, threats to kill, stalking, and sexual assault), bail will be refused unless the applicant can ‘show compelling reason’ why their detention in custody is not justified, and why the bail decision-maker should grant bail. [10] For Schedule 1 offences (such as aggravated home invasion, aggravated carjacking, and drug trafficking), a bail decision-maker must refuse bail unless satisfied that exceptional circumstances exist which justify the grant of bail—and the accused bears the burden of satisfying the existence of that exceptional circumstance. [11] Furthermore, with regard to all offences, bail decision-makers must refuse bail if satisfied that, upon release, there is an unacceptable risk that the accused person would endanger the safety or welfare of others, or commit another offence (among other considerations). [12] The stringency of these provisions is exacerbated by section 8A: a bail decision-maker may refuse bail for a person accused of any offence, if satisfied that it has not been practicable to obtain sufficient information to decide the matter due to the shortness of time since commencing proceedings. [13]


The threshold required to make a successful application creates a significant challenge for applicants—even where the offence is minor or would not warrant imprisonment at sentencing. This undermines fundamental principles of the justice system, including the presumption of innocence. The Law Institute of Victoria commented at the time of discussions that ‘proscriptive sentences do not make the criminal justice system more certain, nor do they protect the community’—demonstrating the long-term impact on communities where accused persons are taken away from the communities which could support them. [14] Acting under a false pretense of promoting community safety, these reforms therefore represent a derogation of human rights, which Dr. Karen Gelb explains is a move ‘from a presumption for bail to a presumption against it’. [15]


III INCARCERATED PEOPLES AND THE COMMUNITY – A FALSE DICHOTOMY?

The criminal justice system, through criminalization and incarceration, carves and creates an ‘Other’ in society, which disproportionately impacts racial minority groups and marginalized aspects of the community. [16] As of April 2021, 67% of all prisoners in Australia were sentenced prisoners, leaving 33% of all prisoners unsentenced and in pre-trial detention. [17] A rudimentary Foucauldian analysis exposes the thinly-veiled operations of the State through laws, regulations, and criminalisation as a mechanism for furthering control and regulation of bodies—particularly in creating its ideal neoliberal Western subjects and its ‘Other’. [18] This is adduced through the discourse of Parliament and the media: by centering concerns of community safety, they further define accused persons as a threat to their communities to which they can no longer belong. In relation to the prison-industrial complex in the United States, Professor Angela Davis observes that ‘our criminal [in]justice system sends increasing numbers of people to prison by first robbing them of housing, healthcare, education and welfare, and then punishing them when they participate in underground economies’. The parallel can be drawn in the Australian context, particularly for bail reform in Victoria, which neglects the underlying social and economic issues which brought about conditions for disadvantaged communities to come into contact with the criminal justice system. [19]


The impact of remand on individuals, families and the broader community is well-recorded. For the individual, remand has been shown to be criminogenic: it unfurls loss of employment and housing, loss of contact with a wider support network, inability to access services and opportunities in custody that are available to sentenced prisoners, and an exposure to a high-risk, unstable and volatile prison population, thereby increasing the risk of recidivism. [20] For the community, remand involves significant financial and social cost, as imprisonment breaks families apart and perpetuates cycles of poverty. [21] To that end, rather than generating greater community protection, the stringent Victorian bail reforms undermine efforts towards identifying and supporting our most vulnerable communities.


IV FIRST NATIONS

Advocate and former prisoner Debbie Kilroy posits that ‘since invasion, the legal system has operated as a mechanism to order, control, regulate and dispose of [First Nations] lives and bodies’, exposing how the extension of the incarceration system through stricter bail reform is a direct continuation of colonisation. [22] In 1991, the ‘Royal Commission into Aboriginal Deaths in Custody’ found that the ATSI population was grossly over-represented in custody; thirty years on, this remains the prevailing issue of the day for First Nations and a barrier to Closing the Gap. [23] Although making up only 2% of the population overall, First Nations make up 29% of all prisoners— where 34% of whom are unsentenced. [24]


Although s 3A of the Bail Act provides for a bail decision-maker to consider the surrounding circumstances and an individual’s sense of First Nations origins, submissions to the Australian Law Reform Commission found that this section has been narrowly interpreted by the court. What is clear is that non-First Nations members of the legal profession are not adept at posing the right questions and recognising issues which may arise due to a person’s First Nations origins. [25] Further issues come to light with regard to judiciary members and law enforcement officers applying the law with gross cultural insensitivity. [26] Altogether, Victorian bail reforms neglect the harms they cause to First Nations in the criminal justice system and the community overall.


VII CONCLUSION

Ultimately, the Victorian bail reforms of 2017-18 have proven to further endanger community protection and safety in the long-term. Rather than merely rally and appease political calls for hollow principles in the short-term, to achieve true community safety we need Justice reinvestment into community services.



FOOTNOTES

[1] Angela Davis, ‘Masked Racism: Reflections on the Prison Industrial Complex’ (1998) Race Forward.

Angela Davis visited Australia for the first time in 1999 as a guest of the Sydney Writers Festival and on her trip, visited the Mulawa Women’s Detention Centre in Sydney and met a group of Indigenous women active in prison reform. After this visit, her work on the history of the penal system also discusses prisons in Australia, given ATSI peoples are proportionally the most incarcerated people in the world.

[2] Bail Act 1977 (Vic); Bail Amendment (Stage Two) Act 2018 (Vic).

[3] Law Institute of Victoria; Victoria Law Reform Commission; Sentencing Advisory Council; Australian Law Reform Commission; Liberty Victoria’s Rights Advocacy Project; State Parliamentary Library Fellows; Debbie Kilroy; Dr. Angela Davis.

[4] Karen Gelb, ‘Review of Victoria’s Bail System’ (Bail Review Taskforce, Law Institute of Victoria, March 2017), 4.

[5] Australian Law Reform Commission, Pathways to Justice-Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No. 133, November 2018), 22 (‘ALRC’); Bail Act 1977 (Vic) s 3A.

[6] G. Rich-Phillips, MLC (2018) ‘Second reading speech: Bail Amendment (Stage Two) Bill 2017’, Debates, Victoria, Legislative Council, 22 February, p. 512; C. Ondarchie, MLC (2018) ‘Second reading speech: Bail Amendment (Stage Two) Bill 2017’, Debates, Victoria, Legislative Council, 22 February, p. 539; J. Morris, MLC (2018) ‘Second reading speech: Serious Offenders Bill 2018’, Debates, Victoria, Legislative Council, 7 June, p. 2521; S. Ramsay (2018) ‘Second reading speech: Serious Offenders Bill 2018’, Debates, Victoria, Legislative Council, 7 June, p. 2529; R. Clark, MLA (2018) ‘Second reading speech: Serious Offenders Bill 2018’, Debates, Victoria, Legislative Assembly, 23 May, p. 1525; H. Victoria, MLA (2018) ‘Second reading speech: Serious Offenders Bill 2018’, Debates, Victoria, Legislative Assembly, 23 May, p. 1553.

[7] Marilyn McMahon, ‘No bail, more jail? Breaking the nexus between community protection and escalating pre-trial detention’ (Research Paper No. 3, Parliamentary Library, Parliament of Victoria, August 2019), 29.

[8] Karen Gelb (n 4) 17.

[9] Bail Act (n 2) s 1B – Guiding Principles.

[10] Bail Act (n 2) s 4C; Schedule 2 Offences cover mostly indictable offences.

[11] Bail Act (n 2) s 4A.

[12] Bail Act (n 2) s 4E.

[13] Bail Act (n 2) s 8A.

[14] Loretta Florance, ‘Victorian Opposition proposes bail, sentencing changes to target repeat offenders’, The ABC (online, 16 January 2018) <https://www.abc.net.au/news/2018-01-16/victorian-law-and-order-debate-re-offending-opposition-policy/9332128>.


[15] Karen Gelb, ‘Opinion – Despite our fears, we should be wary of harsher bail laws’, The Age (online, 25 February 2018) <https://www.theage.com.au/national/victoria/despite-our-fears-we-should-be-wary-of-harsher-bail-laws-20180222-p4z1al.html>.

Dr Karen Gelb is a Consultant Criminologist who spent eight years with the Victorian Sentencing Advisory Council and prepared the Law Institute of Victoria’s ‘Review of Victoria’s Bail System’: see above Karen Gelb (n 4).

[16] Hayley Gleeson, ‘Australia must 'radically rethink' its prisons to avoid becoming like America, US activist says’ (online, 30 April 2019) The ABC <https://www.abc.net.au/news/2019-04-30/australian-prisons-need-radical-rethink-baz-dreisinger-says/11059478>

Note: explained by U.S. activist Baz Dreisinger, the author of Incarceration Nations: A Journey to Justice in Prisons Around the World.

[17] Australian Bureau of Statistics, Corrective Services Australia, Reference period December Quarter 2020 (online) retrieved: April 2021 <https://www.abs.gov.au/statistics/people/crime-and-justice/corrective-services-australia/latest-release>

[18] Michel Foucault ‘Society Must Be Defended’, 1977, Ethics: Subjectivity and Truth, The New Press, New York, 59 – 65; Michel Foucault ‘Security, Territory, and Population’, 1977, Ethics: Subjectivity and Truth, The New Press, New York, 67 – 71.

[19] Angela Davis ‘The Meaning of Freedom and Other Difficult Dialogues’ (2012) City Light Books, 62.

[20] Karen Gelb (n 4), 13.

[21] Karen Gelb (n 4), 13.

[22] Debbie Kilroy, Imagining Abolition: Thinking outside the prison bars, (2018) 60 Griffith Review 264, 265.

‘Debbie Kilroy OAM is one of Australia’s leading advocates for protecting the human rights of women and children through decarceration – the process of moving away from using prisons and other systems of social control in response to crime and social issues’, as read from the Sisters Inside main-page which is an organisation that advocates for the human rights of women in the criminal justice system and responds to gaps in the services available to them: https://www.sistersinside.com.au/about-debbie-kilroy-oam/.

[23] ALRC (n 5), 22.

[24] Australian Bureau of Statistics, Prisoners in Australia as at 30 June 2020 (online) retrieved: April 2021 <https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/2020#aboriginal-and-torres-strait-islander-prisoners>

[25] ALRC (n 5), 174 – The Victorian Aboriginal Legal Service (VALS) Submission 39 to the ALRC.

[26] ALRC (n 5) – police accountability.


BIBLIOGRAPHY

Bail Amendment (Stage Two) Act 2018 (Vic) (No. 3 of 2018)

Bail Act 1977 (Vic)

Marilyn McMahon, ‘No bail, more jail? Breaking the nexus between community protection and escalating pre-trial detention’ (Research Paper No. 3, Parliamentary Library, Parliament of Victoria, August 2019).

Karen Gelb, ‘Review of Victoria’s Bail System’ (Bail Review Taskforce, Law Institute of Victoria, March 2017).

Angela Davis, ‘Masked Racism: Reflections on the Prison Industrial Complex’ (1998) Race Forward.

Australian Law Reform Commission, Pathways to Justice-Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No. 133, November 2018).

Rich-Phillips, G., MLC (2018) ‘Second reading speech: Bail Amendment (Stage Two) Bill 2017’, Debates, Victoria, Legislative Council, 22 February.

Morris, J., MLC (2018) ‘Second reading speech: Serious Offenders Bill 2018’, Debates, Victoria, Legislative Council, 7 June.

Clark, R., MLA (2018) ‘Second reading speech: Serious Offenders Bill 2018’, Debates, Victoria, Legislative Assembly, 23 May.

Ramsay, S., MLC (2018) ‘Second reading speech: Serious Offenders Bill 2018’, Debates, Victoria, Legislative Council, 7 June.

Victoria, H., MLA (2018) ‘Second Reading Speech: Serious Offenders Bill 2018’, Debates, Victoria, Legislative Assembly, 23 May.

Debbie Kilroy, Imagining Abolition: Thinking outside the prison bars, (2018) 60 Griffith Review 264.

Australian Law Reform Commission, Pathways to Justice-Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No. 133, November 2018).

Hayley Gleeson, ‘Australia must 'radically rethink' its prisons to avoid becoming like America, US activist says’ (online, 30 April 2019) The ABC https://www.abc.net.au/news/2019-04-30/australian-prisons-need-radical-rethink-baz-dreisinger-says/11059478

Karen Gelb, ‘Opinion – Despite our fears, we should be wary of harsher bail laws’, The Age (online, 25 February 2018) <https://www.theage.com.au/national/victoria/despite-our-fears-we-should-be-wary-of-harsher-bail-laws-20180222-p4z1al.html>

Loretta Florance, ‘Victorian Opposition proposes bail, sentencing changes to target repeat offenders’, The ABC (online, 16 January 2018) <https://www.abc.net.au/news/2018-01-16/victorian-law-and-order-debate-re-offending-opposition-policy/9332128>

Australian Bureau of Statistics, Prisoners in Australia as at 30 June 2020 (online) retrieved: April 2021 <https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/2020#aboriginal-and-torres-strait-islander-prisoners>

Australian Bureau of Statistics, Corrective Services Australia, Reference period December Quarter 2020 (online) retrieved: April 2021 <https://www.abs.gov.au/statistics/people/crime-and-justice/corrective-services-australia/latest-release>

Angela Davis ‘The Meaning of Freedom and Other Difficult Dialogues’ (2012) City Light Books.



 

Vivian Lai-Tran is a double Bachelor of Laws (Honours) and Bachelor of Arts (International Relations and Philosophy) student who sees no other passion in her life than the cause of social justice and human rights. She believes in the law as a tool for transformative structural change towards an inclusive intersectional society. After volunteering in community legal spaces and assisting with anti-death penalty campaigns, she intends to continue her commitments to social justice advocacy and policy transformation. She is excited for her 2021/2022 term as the Monash LSS Social Justice & Equity Publications Officer.


360 views0 comments
bottom of page