Bail Law Reform Urgently Needed in Victoria to Stem Deaths in Custody

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Bail Law Reform Urgently Needed in Victoria to Stem Deaths in Custody

Veronica Nelson, who died in police custody in 2020 after being denied bail, was subject to “cruel and degrading treatment,” a coroner’s report concluded.

Bail Law Reform Urgently Needed in Victoria to Stem Deaths in Custody
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Victoria’s ruling Labor party has promised to change its bail laws in the wake of a scathing coroner’s report on the death in custody of 37-year-old First Nations woman, Veronica Nelson, on January 2, 2020.

Coroner Simon McGregor noted that the death of Nelson, a Gunditjmara, Dja Dja Wurrung, Wiradjuri, and Yorta Yorta woman who was held without bail after being arrested for shoplifting, was “preventable” and came about as the result of “cruel and degrading treatment” by prison staff at the state’s maximum women’s prison, the Dame Phyllis Frost Centre. 

Nelson, suffering from what the autopsy later revealed was a rare and undiagnosed gastrointestinal condition called Wilkie’s syndrome and withdrawing from heroin, called for help using the intercom 40 times before she died. McGregor’s report stated that the “conditions under which Veronica lived out her final days are harrowing.”

Recordings showed Nelson calling out, once crying “I need help … badly miss, badly,” whilst in another she can be heard calling out to her late father. Her body was found naked on the floor, with her hands clenched. 

When asked if Nelson could have been saved, a medical panel at the coronial inquest agreed that she would have likely been saved if she had been sent to hospital before January 1. One gastroenterologist, Sally Bell, said her death was “unnecessary” and “without dignity.”

McGregor found that the police decision to deny bail failed to use adequate discretion in understanding Nelson’s vulnerability as a First Nations woman in prison. In addition, her healthcare in the facility was influenced by “drug use stigma.” She should have been transferred to a hospital at the time she arrived. Failure to do so carelessly contributed to her death. He stated that: “The assumption that it is normal for patients withdrawing at Dame Phyllis to experience a level of suffering normalized such suffering and results in a desensitization of both corrections and corrections care staff.” 

Correct Care – the private contractor in charge of prison healthcare at Dame Phyllis Frost Centre – as well as Corrections Victoria, were both criticized in the coroners’ findings, arguing that a failure to define the role of the prison medical center and establish proper procedures for information sharing between staff had greatly contributed to Nelson’s death. 

Veronica’s mother, Aunty Donna Nelson, urged the state government to overhaul its bail laws, telling reporters that “Veronica did not deserve to die in such a cruel, heartless and painful way… It’s time to save our daughters, it’s time to change the law.”

What is the Bail Act?

The bail act, strengthened after the 2017 Bourke Street Massacre, has come under extensive criticism, with McGregor describing it as having a “discriminatory impact on First Nations people” which has resulted in “grossly disproportionate rates [of people] remanded in custody, the most egregious of which affects alleged offenders who are Aboriginal and Torres Strait Islander.”

The act itself has been described as one of the most stringent in the nation, and has resulted in the near doubling of Aboriginal women in custody. 

Bail itself is the provision that while someone has been charged for a crime, they have not yet been found guilty and therefore remain innocent in the eyes of the law. Police can release a person from custody under the promise that they will attend their court hearing at a later date. If they apply for bail and are denied, they are kept in custody until the court date. 

In 2018, the Bail Act 1977 was changed to make it harder for people to get bail, due in part to the further implementation of the “reverse onus provisions,” which requires a person to show there are “compelling reasons” or “exceptional circumstances” for them to be released on bail. If they aren’t shown, bail must then be refused. 

The range of offending has expanded to encompass a far broader spectrum of crimes, with the “exceptional circumstances” test – once applied to only the most serious of crimes – now encompassing low level repeated wrongdoings, such as shoplifting. In essence people charged of these crimes are held to the same standard as people accused of violent and dangerous offenses.

In his findings on the death of Nelson, McGregor described the strengthening of the act as a “complete, unmitigated disaster,” with people accused of repeated bail or minor offenses who present no community risk being remanded in custody.

Victoria has some of the toughest bail laws in the country, with the proportion of prisoners held on remand increasing dramatically since the passing of these stricter laws. The Victorian Aboriginal Legal Service (VALS) stated that the Royal Commission into Aboriginal Deaths in Custody recommended an increase in access to bail, and prison time only being used as a “last resort.” VALS went on to note that “[s]ince then, they have been repeated in many reports, reviews, inquiries and forums, yet Victoria has failed to implement these recommendations and instead has gone backwards.”

“In Victoria, the Aboriginal imprisonment rate has almost doubled in the last ten years, and about half of the prison population is on remand,” VALS wrote. “Victoria’s prisons are now filled with people who have not been found guilty of any offense and those who are unlikely to serve a prison sentence even if convicted.”

The Human Rights Law Centre contended that the laws disproportionately impacted women experiencing social and economic disadvantages, despite the fact they were intended to target extreme acts of violence by men. Data shows 53 percent of women in Victorian prisons are unsentenced, whilst an astounding 89 percent of First Nations women entering prison were unsentenced. 

Nerita Waight, VALS chief executive, argued that it was a “mistake” for the laws to have been altered in 2018 and the Victoria state government needed to reverse them. She further disagreed to the notion, claimed by the government at the time, that they had helped to make the community safer.

“In reality, these laws have led to a massive increase in the prison population, which has destroyed families and drained government resources away from communities,” she said.

On the death of Veronica Nelson, she was less ambivalent, telling Guardian Australia, “The cruelty and indifference that everyone in the criminal legal system showed to Veronica in her last days has exposed the destruction that bail laws are inflicting on individuals, their families, and their communities.”

Victorian Premier Daniel Andrews has vowed to take full responsibility in reforming the bail laws, but legal experts warn that unless the “reverse onus” bail provisions are scrapped, any other changes will simply be cosmetic. Andrews refused to guarantee the planned reforms would include removing the provision, with it later revealed his government sat a on bail reform report, which in effect mirrored the findings of the coroner, for 11 months. Arguments have been hypothesized that the government did not want to look weak on crime in the lead up to the 2022 election, which it won in a landslide. 

The Andrews government has also announced it will stop outsourcing to for-profit companies in female prisons.

In the year after Nelson’s death, four more women died in the same jail, one of whom was of Aboriginal or Torres Strait Islander heritage. For Nelson, the crime for which she had been arrested was unlikely to have resulted in a custodial sentence. 

Victoria’s bail laws are just another example of how the legal system in Australia, regardless of intent, has unfairly impacted Aboriginal people. Indigenous women, who make up only .8 percent of the state’s population, make up 14 percent of its prison population. The system has also made it difficult to obtain justice. Coroner McGregor noted that he was concerned there was a “don’t ask, don’t tell” arrangement around various government departments toward deaths in custody. Without a coronial inquest, he pointed out that there would have only been internal reports and a formal debrief as official investigations – the later applauding the efforts of prison staff despite Nelson’s death. 

Nelson’s mother, who along with the VALS and various other legal groups, has campaigned for the laws to change, was clear in her anger at the system in statements saying: “To the lawmakers, I want you to sit and listen to Veronica’s final hours. I want her voice to ring in your ears until you realize that our justice system is broken. Veronica should never have been locked up. Our bail laws need to change now.”