Media release – Tasmanian Aboriginal Legal Service, 4 December 2024
BAIL LEGISLATION – DIRE IMPACT
The Tasmanian Aboriginal Legal Service said today a proposed bill to legislate Tasmania’s bail laws will see more people on remand in a struggling system.
“Aboriginal people already are disproportionately overrepresented in the justice system,” TALS CEO Jake Smith said.
“While the Rockliff Government has committed to closing the gap, in the same breath they are introducing legislation that will see the number of Aboriginal people in custody skyrocket.”
Mr Smith said Attorney-General Guy Barnett is seeking feedback on the Bail Bill 2024, which aims to provide a statutory framework for deciding when bail should and should not be granted.
“However, it introduces an ‘unacceptable risk’ test that has been shown to have disastrous consequences in other jurisdictions. The ‘unacceptable risk’ test involves two steps – whether the defendant poses a risk of one of the four identified behaviours and whether that risk is unacceptable.
“While the Tasmanian Aboriginal Legal Service is supportive of there being a clear legislative framework for bail considerations, introducing an ‘unacceptable risk test’ will see more Aboriginal people locked up in an overcrowded system where there are significant delays in matters being resolved.
“Unlike Victorian legislation, the proposed Tasmanian legislation does not include any mandatory consideration of a person’s Aboriginal descent.”
TALS Principal Lawyer Hannah Phillips said the new bill in its current form has the potential to erode the presumption of innocence.
“It will also have indirect effects on pleas of guilty and sentencing outcomes,” Ms Phillips said.
“It will place even more strain on a struggling system and disproportionally impact vulnerable groups including Aboriginal people continuing to entrench disadvantage.
“Victorian Coroner Simon McGregor in the inquest into the passing of Veronica Nelson, highlighted the issues with an ‘unacceptable risk test’, noting that there are discriminatory effects for people already experiencing social disadvantage.
“In this case a proud Aboriginal woman was found dead in her prison cell after being denied bail in respect of 8 charges of shoplifting, two charges of breach of bail and one breach of a community corrections order.
“The coroner in his decision noted that despite the unacceptable risk test being in the legislation for a decade, interpretation and application of the section remained confusing and failed to address the overrepresentation of Aboriginal people remanded in custody.”
Ms Phillips said while the protection of the public is important and the Tasmanian Aboriginal Legal Service understand the community’s perception and concern, what we see is vulnerable people with complex needs and significant disadvantage, failed by many systems, who are struggling and in need.
“Locking people are up in an overcrowded system where lockdowns are happening daily, there is little to no rehabilitative options is not protecting the public in the long term. It increases risk and will lead to deaths in custody.”
Mr Smith said the Tasmanian Aboriginal Legal Service operates Tasmania’s only Bail Support Program via a pilot out of Launceston.
“We discussed this program with the Attorney-General as recently as last week as the pilot is coming to an end. There is no ongoing funding to support this program that has proven results, which were discussed.
“Extending this program statewide will not only benefit Aboriginal people on bail, but also see positive outcomes for community and for the state government. Despite bail programs being successful all around the country, the law-and-order response in this state puts us back in the dark ages compared to other jurisdictions.
“These programs are proven to work to protect communities and address risk.
“If jail worked, why is recidivism at an all-time high? And why are jails fuller than ever?”
