Adopt s 3A in other states and territories

5.87     The introduction of a discrete provision in the bail statutes across states and territories would require bail authorities to contextualise issues that arise due to a person’s Aboriginality when making bail determinations—including determinations when the accused must ‘show cause’—and in setting conditions, and should:

• require bail authorities to consider community supports, the person’s role in community and cultural obligations when determining risk. It permits these considerations to be balanced against the lack of otherwise permanent residency, employment and immediate family supports;
• require courts to consider any previous offending—especially low-level offending—in context, particularly where a person has experienced historical and continuing disadvantage, as in Victoria;^[129]
• require bail authorities to consider remoteness, flexible living arrangements and mobility when setting bail conditions;^[130]
• lower the likelihood of bail authorities imposing inappropriate conditions, including the imposition of sureties, that ultimately are difficult, if not impossible, to meet;
• decrease the risk that considerations of cultural practice and obligations by bail authorities will be taken into account inconsistently; and
• reduce the number of Aboriginal and Torres Strait Islander peoples in prison on remand—especially critical for women on remand, who may lose accommodation and custody of their children while in prison.^[131]

5.88     There have been calls to introduce a provision similar to that enacted in Victoria in other jurisdictions. In 2012, the NSWLRC recommended the introduction of a provision that would require consideration in bail determinations to be given to matters ‘associated with Aboriginal or Torres Strait Islander identity, culture and heritage, including connections with extended family and traditional ties to place.’^[132] It suggested that bail authorities consider the ‘strength or otherwise of the person’s family and community ties, including employment, business and other associations, extended family and kinship ties and the traditional ties of Aboriginal people and Torres Strait Islanders’.^[133]

5.89     A 2017 report into the over-representation of Aboriginal and Torres Strait Islander women in prison recommended amendments to state and territory bail legislation to ensure that the historical and systemic factors contributing to the over–imprisonment of Aboriginal and Torres Strait Islander peoples be taken into account in bail decisions. The report further recommended that consideration be given to the impact of imprisonment—including remand—on dependent children.^[134] The report noted that bail support and diversionary options linked with accommodation, designed by and for Aboriginal and Torres Strait Islander women, were also required if such legislation is to have its intended effect of keeping Aboriginal and Torres Strait Islander women out of prison on bail.^[135] This reflected the observations of the Victorian Equal Opportunity and Human Rights Commission in 2013,^[136] and was also reiterated by the Law Institute of Victoria in 2017.^[137]

5.90     The Victorian provision goes further than the provisions in NSW and the NT, and places a different emphasis on the evidence than the Queensland provision, which requires a submission from a Community Justice Group. Section 3A is prescriptive, requiring the court, rather than permitting the court (as in Queensland), to consider issues related to Aboriginality,^[138] and wide enough to be of broader application and to include considerations of appropriate bail conditions.^[139]

5.91     Section 3A was supported in a 2017 Victorian bail review, which reported widespread stakeholder support for the provision in Victoria.^[140]

5.92     Submissions to this Inquiry overwhelmingly supported the proposal that state and territories adopt a provision similar to s 3A.^[141] Bench books and practice notes were seen to be important, but insufficient to address the issues and to provide for consistency.^[142] The Victorian provision was seen as a way to strengthen bail laws for accused Aboriginal and Torres Strait Islander peoples.^[143] It was considered that s 3A would fill the gap in jurisdictions that currently do not have a statutory requirement to consider issues relating to a person’s Aboriginality, and be a better option for those that do.^[144] Legal Aid ACT suggested that the ‘benefits’ of the Victorian provision ‘were clear’:

In the first instance, it would likely aid the removal of lingering (if inadvertent) structural biases, promoting a more responsive and equitable system for ATSI offenders. Courts would be required to turn their minds to the diverse cultural institutions and community configurations that exist to support and condemn ATSI offenders, and consider these relevant to other Bail Act requirements. Far from being a race based ‘bonus’ card, the provision’s aim would be to provide accurate insight and a more complete understanding of the risks and particularities relevant to the defendants at hand.^[145]

5.93     The Chief Magistrate of the Local Court of NSW and the Institute of Public Affairs (IPA) did not support the adoption of s 3A.^[146] The Chief Magistrate suggested that the existing provisions in NSW were adequate.^[147] The IPA expressed support for approaches that promote formal, not substantive, equality before the law. The IPA suggested that reform should focus on improving the ability of Aboriginal and Torres Strait Islander peoples to ‘interact with the law’ through services such as interpreters, rather than the creation of a ‘parallel system’ through legislative amendment or the introduction of ‘culturally appropriate’ criminal justice responses. It was the view of the IPA that bail authorities should assess the same considerations for everyone when making bail determinations.^[148]

5.94     Others supported adoption of s 3A, with amendments.^[149] For example, ALHR supported replicating s 3A with the insertion of additional words:

In making a determination under this Act in relation to an Aboriginal person, a court must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including—

(a)     the person’s cultural background, including the person’s ties to extended family or place, residence in a remote location or locations, and cultural obligations; and

      (b)    any other relevant cultural issue or obligation.^[150]

5.95     The ALHR suggested that express reference to location may address certain issues relating to remoteness and conditions of bail, including the possibility that the community may live more ‘itinerate lives’ due to family networks, and experience ‘geographically dispersed cultural commitments, weather extremes that render remote communities uninhabitable or inaccessible for parts of the year, and other exigencies of very remote living’.^[151] Accused Aboriginal and Torres Strait Islander people may also have difficulty complying with bail conditions requiring strict confinement to a particular community or area, particularly to complying with electronic monitoring conditions. Conversely, electronic monitoring may not be available in regional and remote areas, disadvantaging Aboriginal and Torres Strait Islander people in those areas from being granted bail. It was the view of the ALHR that lack of access should be a factor that the bail authority can take into account.^[152]

5.96     It was further suggested that other amendments to s 3A should:

• include reference to a person’s age;^[153]
• provide ‘culture’ and ‘background’ as separate considerations (rather than the requirement to consider a person’s cultural background);^[154] and
• explicitly state that courts are to consider the relevant matters when determining whether the person will reach bail and when attaching conditions to that bail.^[155]

5.97     The ALRC recommends the adoption of provisions that mirror s 3A in all states and territories. There may be opportunity for state and territory governments to work with relevant Aboriginal and Torres Strait Islander groups and representatives to review the drafting and scope of s 3A, with an eye to further clarify and improve its operation.

5.98     The ALRC is alert to fiscal constraints and time pressures that a properly instituted s 3A provision could impose on legal advocates and the criminal justice system. While the ALSWA supported the introduction of such a provision in WA, it noted the need for Aboriginal and Torres Strait Islander legal services and Aboriginal language interpreter services to support the proper presentation of issues relating to an accused person’s cultural background and obligations.^[156] NATSILS further commented that Aboriginal services, including legal and interpreter services, would need to be resourced to research and provide relevant matters to the court.^[157]