Wednesday, 15 September 2021

 Dr RATNAM (Northern Metropolitan) (09:12): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Bail Amendment (Reducing Pre-trial Imprisonment of Women, Aboriginal, and Vulnerable Persons) Bill 2021 (the bill).

In my opinion, the bill, as introduced to the Legislative Council, is compatible with, promotes, and strengthens, the human rights protected by the Charter.

I base my opinion on the reasons outlined in this statement.

Background

Over the past decade, legislative reforms to the Bail Act 1977 (the Bail Act) have led to significant rises in the number of unsentenced prisoners on remand awaiting trial. This, in turn, has caused exponential growth in the capital and operational costs of Victoria’s prison system, considerable declines in prison performance, and rising reoffending rates for both children and adults. At the same time there is no empirical evidence that the reforms have enhanced community safety.

Moreover, the reforms have also led to disproportionately higher rates of imprisonment of women, Aboriginal and Torres Strait Islander people, and children, despite the fact that these groups are not responsible for the majority of serious criminal offending in the community.

High numbers of vulnerable people being imprisoned for alleged low level offences raises concerns that the bail system is operating contrary to the fundamental rights and principles of our criminal justice system, and is contributing to injustice and recidivism.

Overview of bill

The Bail Amendment (Reducing Pre-trial Imprisonment of Women, Aboriginal, and Vulnerable Persons) Bill 2021 will improve the process for determining bail under the Bail Act 1977 by:

• providing for the granting of bail based on a simplified single test of “unacceptable risk”, with no reverse onus provisions; and,

• expanding and clarifying the list of surrounding circumstances to be taken into consideration in relation to bail matters.

Human Rights Issues

In my opinion, the human rights protected by the charter that are relevant to the bill are:

• The right to recognition and equality before the law (section 8)

• The right to freedom of movement (section 12)

• Cultural rights, including Aboriginal cultural rights (section 19)

• The right to liberty and security of person (section 21)

• The rights of an accused person who is detained without conviction (section 22)

• The rights of children in the criminal process (section 23)

• Rights in criminal proceedings, including the right to be presumed innocent until proven guilty (section 25)

Repeal of the reverse onus provisions in the Bail Act:

Section 21 of the Charter protects the human right to liberty and security. It provides that a person must not be deprived of their liberty except on grounds, and in accordance with procedures, established by law (section 21(3)), and that a person awaiting trial must not be automatically detained in custody, but that their release may be subject to guarantees to appear for trial and at any other stage of the judicial proceedings (section 21(6)).

Section 25(1) of the Charter states that a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law. This right applies to an accused from the point they are charged until their trial.

These Charter rights are directly reflected in the guiding principles (section 1B) of the Bail Act, that state the Act should be applied having regard to: maximising the safety of the community; the presumption of innocence and the right to liberty; fairness, transparency and consistency; and, promoting public understanding of bail processes.

Section 4 of the Bail Act also contains a general entitlement in favour of bail, recognising that an accused person maintains a right to liberty, freedom of movement, and the presumption of innocence. However, this presumption is effectively reversed in the Bail Act for those accused of some serious or repeat offences, where the ‘exceptional circumstances’ (section 4A) or ‘show compelling reason’ (section 4C) tests may apply.

These are known as ‘reverse onus’ tests, because they require that bail be refused unless a person can successfully argue their case for bail (i.e the burden of proof is on the accused to establish that exceptional circumstances or a compelling reason exists, before they may be released from custody).

Bail is not automatically granted even if an accused successfully demonstrates a compelling reason or exceptional circumstances, as all accused must still meet the ‘unacceptable risk’ test (section 4E) to receive bail (i.e. a ‘two-step process’).

The unacceptable risk test means an accused will be granted bail unless a prosecutor can establish the accused is an unacceptable risk to public safety, interfering with witnesses, committing an offence, or failing to appear at their trial.

Reverse onus tests conflict with the presumption of innocence and the right to liberty in the Charter. However, these limitations have been justified as necessary to balance these rights with the right to security also in section 21 of the Charter, and specifically, the right of the community to be safe and secure from criminal offending by a person on bail. It is also claimed that such tests may ensure bail decision makers apply a more rigorous approach to the question of bail for certain serious offences. Despite this, there is no evidence to justify the test’s efficacy in improving bail decision making or enhancing community safety.

In its comprehensive Bail Review, the Victorian Law Reform Commission (VLRC) characterised this two step process ‘illogical’, and recommended the abolition of both the reverse onus tests in favour of a single unacceptable risk test, a system also favoured by most legal stakeholders.

The more recent Bail Review by The Hon. Justice Coghlan, recommended retaining the reverse onus tests, because they were: “more likely to enhance public confidence in the bail system … and removal of these provisions may be seen by the community as weakening the current law by making it easier for accused persons to be granted bail.” However, I note that Justice Coghlan’s reasoning for their retention does not reflect any human rights in the Charter, or the stated principles of the Bail Act. Justice Coghlan’s recommendations were, however, partially implemented by the Victorian Government.

I consider it doubtful whether limitations to the rights in sections 12, 21 and 25 of the Charter, by inclusion of additional reverse onus tests in the Bail Act, can be justified on the grounds of public safety and security, because any risk to public safety is already the primary consideration of the unacceptable risk test, that applies to all bail decisions. Therefore, all factors relevant to the issue of public safety that may arise during the compelling reason or exceptional circumstances test, will always already be considered in the unacceptable risk test.

If there is, indeed, a need for bail decision makers to apply a more rigorous approach to the question of bail for persons charged with certain serious offences, then such a means can be achieved by incorporating this requirement into the process for the unacceptable risk test, a less abstract and more logical framework for bail decision makers to determine risk, that does not unnecessarily limit Charter rights.

In my opinion, therefore, the bill’s amendments to the Bail Act enhance the human rights of the Charter for the following reasons:

The bill repeals the two reverse onus tests, the exceptional circumstances and show compelling reason tests, so that granting bail is based on a simplified and focussed single test of unacceptable risk. This means all bail decisions will uphold a general presumption of bail consistent with sections 12, 21 and 25 of the Charter, unless it is established that an accused is an unacceptable risk: to public safety; of interfering with witnesses; of committing an offence; or, of failing to appear for their trial. This is consistent with the recommendations of the VLRC.

The bill amends the non-exhaustive list of factors (‘surrounding circumstances’) in section 3AAA of the Bail Act, that are to be considered by bail decision makers in the unacceptable risk test. The new factors inserted by the bill provides that bail decision makers should also consider whether an alleged offence is listed in Schedule 1 or Schedule 2 of the Bail Act, when determining unacceptable risk. Including the additional consideration will provide bail decision makers with more guidance as to the seriousness of an accused’s offence when determining whether there is an unacceptable risk, because Schedule 1 and 2 offences are considered as serious offences in the context of determining bail. This will serve to provide a more logical means for bail decision makers to be reminded of the seriousness of an alleged offence, and by extension potentially applying a more rigorous approach to the question of bail, than the current reverse onus tests.

Discrimination in the operation of the Bail Act:

Section 8(2) of the Charter provides that every person has the right to enjoy his or her human rights without discrimination. Section 8(3) provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination, and has the right to equal and effective protection against discrimination.

Laws, policies and programs should not be discriminatory, and you have the right to exercise your human rights without discrimination. This means that you cannot be treated unfavourably because of your personal characteristics.

‘Discrimination’ for the purposes of this right is defined under section 7 of the Equal Opportunity and Human Rights Act 2010 to include direct or indirect discrimination on the basis of an attribute, including a person’s age, gender identity and sex, and race.

Section 23 of the Charter provides specific rights for children who are being detained or convicted of an offence, recognising that children are vulnerable due to their young age. Section 23(3) states that a child that has been convicted of an offence must be treated in a way that is appropriate for his or her age.

Section 25(3) states that a child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.

Section 19 of the Charter provides that people with particular cultural, religious, racial or linguistic background must not be denied the right to enjoy or practise their culture. Section 19(2) recognises that Aboriginal people hold distinct cultural rights.

As outlined above, reverse onus tests require that bail be refused unless accused people successfully argue their case for bail, by placing the burden of proof on the accused to establish that an exceptional or compelling reason exists before they can be released from custody.

It has been claimed that this ability to advocate before a court, to make a case for release, offers an important safeguard from unfair detention to an accused person. However, relying on an accused person to convince a court why they should not be incarcerated, is not a safeguard that is equally accessible to large cohorts of vulnerable people, including women, children and Aboriginal and Torres Strait Island persons, and those persons with mental illness and disability, whose contact with the criminal justice system is frequently the result of social, cultural and economic disadvantage.

Recent changes to the Bail Act have meant that repeat low level offending, including minor breaches of bail conditions, that are most frequently the result of poverty, homelessness, poor mental health and family violence, are being uplifted into requiring a show compelling reason test, or exceptional circumstances test, which is the same threshold for bail as the most serious offences such as murder, treason and serious sexual offences. This has led to far greater numbers of vulnerable people being held in prison on remand for charges that are unlikely to result in a custodial sentence even if they are proven.

In practice, the presence of one or more social, cultural or economic disadvantage, makes it more difficult for an accused to meet a reverse onus threshold, for example, because of access to stable housing, employment and/or engagement in social welfare programs.

A high proportion of vulnerable people will also be self-represented in their initial bail hearings, so will likely have limited capacity to comprehend the complex reverse onus tests in their self-advocacy, or be aware of, and engage, the specific additional protections for vulnerable people in the Bail Act (eg. special considerations in section 3A and 3B of the Bail Act for Aboriginal culture and children).

Inequality in the operation of the Bail Act is reflected by empirical corrections data, where the proportion of prisoners being held unsentenced in prison is more closely associated with relative levels of social, cultural and economic disadvantage, than the respective seriousness of charges.

Because of this, Victoria’s prison system currently holds significantly higher proportions of women, children and Aboriginal people unsentenced and in pre-trial detention on remand, compared to the total proportion of unsentenced prisoners across the general prison population. This is despite the fact that these groups are also less likely to be charged with serious offences, and more likely to eventually be released from custody on time served, or a non-custodial sentence.

Indeed, the combination of onerous bail thresholds for low level offences has created a perverse incentive for people to plead guilty to a charge, regardless of actual guilt, as often this results in earlier release from custody than if they contest bail and their charges.

No group of people have been more damaged by disproportionate police and prison custody than Australia’s First Nations people.

The Royal Commission Into Aboriginal Deaths In Custody (RCIADIC) thirty years ago recognised the urgent need for bail law reform, noting: “… the lack of flexibility of bail procedure and the difficulty Aboriginal people frequently face in meeting police bail criteria by virtue of their socioeconomic status or cultural difference contributes to their needless detention in police custody.”

The RCIADIC also delivered specific recommendations for bail legislation, ‘… that governments, in conjunction with Aboriginal Legal Services and Police Services, give consideration to amending bail legislation … to revise any criteria which inappropriately restrict the granting of bail to Aboriginal people’, and, ‘… that governments which have not already done so should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort.’

The Victorian Aboriginal Legal Service (VALS) recently reprimanded the Victorian government regarding recent reforms that have expanded a general presumption against bail, that have not only failed to implement the RCIADIC recommendations, but have actively worked against their achievement.

As a direct result, the disproportionate incarceration of Aboriginal Victorians over the past decade has accelerated to the highest levels in recorded history, and moved the State even further away from its stated goal of ending justice disadvantage for Aboriginal Victorians compared to non-Aboriginal Victorians.

Higher rates of Aboriginal people held on remand without cause, further compounds the loss of culture, family and purpose for a growing number of Aboriginal people, entrenching their social and economic disadvantage, and their chances of dying in custody, throughout their lifetimes.

As well as being discriminatory, the consequences of higher pre-trial detention of people from vulnerable communities is often intergenerational and criminogenic, entrenching disadvantage and likely decreasing public safety in the long term.

In my opinion, the bill will reduce discrimination for vulnerable groups of people in the operation of the Bail Act, defined in section 8 of the Charter, and uphold rights of Women, Children and Aboriginal and Torres Strait Island persons under sections 8, 19, 23 and 25 of the Charter, for these reasons:

The bill repeals the two reverse onus tests, the exceptional circumstances and show compelling reason tests, so that granting bail is based on a simplified and focussed single test of unacceptable risk. This will ensure that the social, economic or cultural disadvantage inherent in vulnerable groups of people will not lead to a presumptive denial of bail, where these factors are irrelevant to the issue of unacceptable risk, where I consider unacceptable risk as the only reasonable limitation to Charter rights.

Repeal of the reverse onus provisions will also ensure that court decision makers are not prevented from applying more discretion for vulnerable persons, including engaging the special requirement in sections 3A and 3B of the Bail Act, relating to Aboriginal culture and children, because an accused has been unable to establish a compelling reason or exceptional circumstances.

The bill maintains that the evidentiary burden of proof must always be on the prosecution in requiring the unacceptable risk test, ensuring that bail will not be denied, and a person be remanded into custody, for the sole reason that an accused is unable to effectively present an argument for their release, that may be due to, or exacerbated because of, factors inherent to their disadvantage. However, the bill maintains as an important safety measure the provision that a bail decision maker can refuse bail where there is insufficient information to make a determination, under section 8A of the Bail Act.

The bill provides for the granting of bail based on a simplified and focussed test of unacceptable risk. A single unacceptable risk test will provide a clearer and more readily understood framework for both accused and prosecutors to present their respective cases whether applying for or opposing bail. This will increase procedural fairness on bail hearings, and may lead to more information that is relevant to achieving the purpose of the Bail Act being applied to bail decisions - primarily, the balance between the right to liberty and the presumption of innocence, with the seriousness of an offence and the risk to public safety.

The bill amends the non-exhaustive list of surrounding circumstances, relevant to applying the unacceptable risk test in section 3AAA of the Act, to include: consideration of relevant human rights under the Charter of Human Rights and Responsibilities; any parental responsibilities the accused may have in relation to a child; the likelihood of a custodial sentence for the accused; and the interests of justice. While the surrounding circumstances listed in section 3AAA are non-exhaustive and provided as guidance, inclusion of these additional factors may provide bail decision makers with greater scope to ensure consideration of bail does not occur in isolation from the context of the broader society and human rights, including the long-term and intergenerational effects of pre-trial detention.

Humane treatment when deprived of liberty:

Section 22(3) of the Charter provides that all persons deprived of liberty must be treated with humanity and dignity, including an accused person who is detained without conviction, such as an accused on remand, and that an accused person must be segregated from persons who have been convicted of offences, except where reasonably necessary (Section 22(2)).

Section 22 recognises that a person’s rights in criminal proceedings, specifically the right to be presumed innocent until they have their matter decided by a court, equates to receiving conditions in pre-trial detention that reflect their presumed innocence.

In reality conditions on remand are poorer than the rest of the prison system, a fact exacerbated by record numbers of unsentenced prisoners cycling through the system. Victoria has continually failed to meet annual performance standards for prison conditions in the State Budget due to the significant increases in remand numbers.

Accused on remand generally do not receive any therapeutic programs, rehabilitation or other support while on remand, and even short periods of remand often lead to a vulnerable person struggling to re-engage with welfare and treatment on their release.

The isolation and separation from culture and kin means that the health and mental health effects of custody have been shown to be especially deleterious for Aboriginal people who continue to die in custody in Victoria when on remand for minor offences.

Young children may be separated and held in isolation due to being especially vulnerable, in conditions that may amount to solitary confinement that are in breach of international human rights standards. Children, and in particular young children, do particularly badly in the long-term across a range of health and social indicators as a result of spending time in custody.

In my opinion, the bill will uphold rights in section 22 of the Charter for these reasons:

The bill provides for the granting of bail based on a simplified single test of unacceptable risk. Repeal of reverse onus tests, will ensure that the social, economic or cultural disadvantage inherent in vulnerable groups of people will not lead to a presumptive denial of bail, where these factors are irrelevant to the issue of unacceptable risk. Therefore, the bill may lead to a reduction in the number of vulnerable people on remand, and shorter periods of time on remand for vulnerable people, due to less complicated and more efficient bail hearings and reduced court delays. A reduction in the number of vulnerable, complex cases on remand, where there is no additional threat to public safety, will ease demand pressures on the corrections system that may improve conditions in custody.

The bill also amends the list of surrounding circumstances, relevant to bail matters in section 3AAA of the Act, to include: “any risk of physical, psychological or other harm to the accused while on remand, including self-harm or harm by others.” While in practical terms these considerations, such as the poor prison conditions in remand, are normally already taken into consideration by bail decision makers, inserting a specific reference in section 3AAA may serve to remind all parties involved in bail decisions to give consideration of any potential harms that are caused when a person is held in the remand environment.

 Dr RATNAM (Northern Metropolitan) (09:13): I move:

That the bill be now read a second time.

Back when the Royal Commission into Aboriginal Deaths in Custody went to work, First Nations people made up 3 per cent of Victoria’s prison population, a rate of imprisonment at around 900 per 100 000 population.

Thirty years later, by the end of the year 2019, just prior to the pandemic, First Nations prisoners made up over 10 per cent of the total prison population in Victoria, at a staggering rate of 2220 imprisoned per 100 000.

What is more, the sharpest rise in Aboriginal custody, and the greatest ever gap between the incarceration levels of Aboriginal and non-Aboriginal Victorians, has occurred in recent years under this government.

How could this happen in our time?

Social and economic disadvantage caused by dispossession, racism, and loss of culture are of course ongoing, but they can’t account for the record rises in Aboriginal imprisonment in recent years.

No, this is directly the result of recent Victorian government justice policy.

Specifically, it is the reforms to the Bail Act 1977 over the last decade that have led to almost all of the record rises in imprisonment, and disproportionately those from the most vulnerable groups.

By way of example, there were almost 2000 more prisoners in 2019 compared to 2014, and 92 per cent of these additional prisoners were unsentenced on remand.

While we were told that bail reforms would improve public safety by getting tougher on dangerous criminals, the data tells a different story, because the proportion of prisoners held unsentenced on remand is far more closely associated with relative levels of social, cultural and economic disadvantage than the respective seriousness of the alleged offences.

Most would be shocked to learn that the rates of imprisonment on remand for Aboriginal Victorians, and also women and children, is much higher than for non-Aboriginal men responsible for the most serious violent crime.

As well as being discriminatory and expensive, the consequences of higher pre-trial detention of people from vulnerable communities is often intergenerational and criminogenic, entrenching disadvantage and crime for decades.

The most tragic consequence is that Aboriginal Victorians continue to die in custody when on remand for offences as minor as shoplifting that almost never result in custodial sentences.

The Bail Amendment (Reducing Pre-trial Imprisonment of Women, Aboriginal, and Vulnerable Persons) Bill 2021 proposes to wind back the failed bail reforms of the last decade that have also caused exponential growth in the capital and operational costs of Victoria’s prison system, considerable declines in prison performance, and rising reoffending rates for both children and adults, without any evidence that they have enhanced community safety.

Instead the bill will implement bail reform consistent with the recommendations of the Victorian Law Reform Commission that began in 2010, but was abandoned after Victoria’s justice policy became politicised.

In doing so the bill proposes neither a tougher nor a weaker bail system, but a smarter system that will provide a simpler and more readily understood risk assessment framework for bail decisions to be made.

I turn now to the …

Bill summary and structure

The guiding principles of the Bail Act state the act should have regard to maximising the safety of the community and the presumption of innocence and the right to liberty.

Put simply, this means a person charged with an offence must be presumed innocent and so not be detained in custody, but be released on bail until their trial, unless there is good reason to believe that they may pose a risk to public safety while on bail, in which case they should be held on remand.

The Bail Act recognises this by way of applying the unacceptable risk test to determine whether a person receives bail.

The unacceptable risk test means an accused will be granted bail unless a prosecutor can establish the accused is an unacceptable risk to public safety, interfering with witnesses, committing an offence, or failing to appear at their trial.

However, the Bail Act also contains additional tests for those accused of some offences, where the exceptional circumstances or show compelling reason tests may apply.

These are known as reverse onus tests, because they require that bail be refused unless an accused person can successfully argue they have an exceptional circumstance or a compelling reason for bail.

Recent bail reforms have focused not so much on raising the reverse onus threshold for bail for those charged with serious offences, but on expanding the total number of offences that require a reverse onus test.

It is a quantitative not a qualitative approach to determining bail that has led to far more people being held on remand irrespective of whether or not their imprisonment makes any sense.

In particular, repeat low-level offending, including minor breaches of bail conditions, which are most frequently the result of poverty, homelessness, poor mental health and family violence, is being uplifted into requiring a show compelling reason test, or exceptional circumstances test, the same threshold for bail as the most serious offences, such as murder, treason and serious sexual offences.

This has led to far greater numbers of vulnerable people, who in reality pose no threat to public safety, being unable to receive bail and so held in prison on remand for charges that are unlikely to result in a custodial sentence even if they are proven.

In practice, the very presence of social, cultural or economic disadvantage makes it more difficult for an accused to meet a reverse onus threshold in court, regardless of how minor their offending—for example, when an accused woman lacks access to stable housing because of family violence.

This expansion of the reverse onus tests to capture low-level offences explains why the incarceration of vulnerable groups such as women and Aboriginal Victorians has risen in recent years at a much higher rate than non-Aboriginal men.

Given that all accused always have to meet the unacceptable risk test for bail anyway, it is not logically apparent why the added complexity of reverse onus tests are required at all in regard to improving public safety.

This was the conclusion reached by the Victorian Law Reform Commission (VLRC) in the most comprehensive review of the Bail Act, released in 2007. The VLRC characterised the reverse onus tests as ‘illogical’ and recommended they be repealed in favour of a single unacceptable risk test, a system also favoured by most key legal stakeholders.

Repeal of the reverse onus tests

Therefore, the bill repeals the two reverse onus tests, the exceptional circumstances and show compelling reason tests, so that granting bail is based on a simplified and focused single test of unacceptable risk, consistent with the recommendation of the VLRC.

The unacceptable risk test will operate in the same way as currently under the act—that is, a bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that if the accused is released on bail there is an unacceptable risk they would: endanger the safety or welfare of any person; commit an offence; interfere with a witness or obstruct justice; or fail to surrender into custody.

The bill maintains that the evidentiary burden of proof must always be on the prosecution, consistent with our established system of criminal law.

A single unacceptable risk test will ensure that bail will not be denied, and a person remanded into custody, for the sole reason that an accused is unable to effectively present an argument for their release that may be due to or exacerbated because of factors inherent to their disadvantage, where such factors are irrelevant to the issue of unacceptable risk to public safety.

Additional surrounding circumstances to be considered in determining bail

The bill also expands the non-exhaustive list of factors in section 3AAA of the Bail Act, known as surrounding circumstances, that are to be considered by bail decision makers in the unacceptable risk test.

The bill adds consideration of whether the alleged offence is classified as a schedule 1 or a schedule 2 offence. This addition will provide bail decision makers with more guidance as to the seriousness of an accused’s offence when determining whether there is an unacceptable risk, because schedule 1 and 2 offences are considered as serious offences in the context of determining bail.

This will serve to provide a more logical means for bail decision makers to be reminded of the seriousness of an alleged offence, and by extension potentially applying a more rigorous approach to the question of bail than undertaking the current reverse onus tests for schedule 1 and 2 offences currently.

The bill also adds other additional factors that may be considered by bail decision makers in determining bail, including: any parental responsibilities the accused may have in relation to a child; the likelihood of a custodial sentence for the accused, should they be found guilty of the offence they are charged with; and consideration of any relevant human rights under the Victorian Charter of Human Rights and Responsibilities.

While the surrounding circumstances listed are a non-exhaustive list provided only as guidance to bail decisions makers, inclusion of these additional factors may provide bail decision makers with greater scope to ensure consideration of bail does not occur in isolation from the context of the broader welfare of our society, including the long-term criminogenic and intergenerational effects of unnecessary pre-trial detention for low-level offences.

The bill also contains other technical amendments to provisions in the Bail Act relating to where a terrorism risk is alleged, when only a court can determine bail, and when a court must record reasons for granting bail.

These amendments are required because the bill repeals the reverse onus tests, and they largely preserve the existing procedures in these circumstances, notwithstanding under the bill no reverse onus tests will occur, and the burden of proof will always remain with the prosecution.

Conclusion

As a direct result of recent changes to bail laws, the disproportionate incarceration of Aboriginal Victorians over the past decade has accelerated to the highest levels in recorded history and moved the state even further away from its stated goal of ending justice disadvantage for Aboriginal Victorians compared to non-Aboriginal Victorians.

Higher rates of Aboriginal Victorians held on remand without cause further compounds the loss of culture, family and purpose for a growing number of Aboriginal people, entrenching their social and economic disadvantage, and their chances of dying in custody, throughout their lifetimes.

Stopping this trend requires reforms to the Bail Act as a priority.

There can be no more excuses or distractions. This is what the Victorian Aboriginal Legal Service continues to tell us. In fact, it is what the royal commission recommended some 30 years ago.

But it is not only this, Victoria’s prison system currently holds significantly higher proportions of women and children unsentenced and in pretrial detention on remand, compared to the general prison population.

This, despite the fact that these groups are also less likely to be charged with serious offences, and more likely to eventually be released from custody on time served, or a non-custodial sentence.

We have repurposed the prison system as a temporary dumping ground for the most socially disadvantaged, criminalising their disadvantage and poverty rather than connecting them with less expensive and more effective health and social programs that will actually address their low-level criminal offending.

Already billions of dollars have been wasted in Victoria expanding prisons so low-level offenders can cycle through the system for short periods on remand, money that instead should have been spent on housing, hospitals, mental health support and education.

Of course, this also means our prison system can’t actually do what it is designed to do—that is, holding the most serious offenders and seeking to rehabilitate those who are to be released so they don’t reoffend.

It is no coincidence that reoffending rates have continued to rise at the same time as the recent bail reforms.

I have been encouraged hearing some comments from all sides of politics that justice policy simply can’t continue on this failing trajectory.

Because ultimately, it doesn’t matter if you are more concerned about the fiscal implications, the discrimination, the reoffending rate, or human rights in supporting bail reform. Evidence-based justice policy requires multi-partisan support.

Therefore, as I said when I introduced the bill to raise the age of criminal responsibility, the question is not if these reforms get implemented, but when.

The COVID pandemic has meant that we have an opportunity to lock in some of the reduced imprisonment of women and Aboriginal Victorians, to permanently redirect these people to housing and social support.

Or we can wait until there is even more money wasted, more reoffending and victims, more communities destroyed, and more preventable Aboriginal deaths on remand, and then make these changes.

The Greens have introduced this bill today because we must not wait.

I commend this bill to the house.

 Ms TAYLOR (Southern Metropolitan) (09:26): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.