Time for a fightback: Victoria’s bail regime creates a sexist and racist catastrophe

Demanding justice for Ms Nelson-Walker on Invasion Day, January 2020. Photo by Alison Thorne.
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Thousands marched in anger and grief through Melbourne’s suburb of Brunswick following the shocking death of 29-year-old Irish woman, Jill Meagher. She was raped and murdered by Adrian Bayley on 22 September 2012. A week later, about 30,000 marched past the spot where she was attacked. This crowd held diverse views about what to call for. Some saw little option but to support calls by politicians and police for a suite of law-and-order measures. But many focused on the systemic issues, which underpin the epidemic of violence against women. 

Just weeks later, 8,000 rallied for Reclaim the Night. We remembered Meagher, as well as the many other women whose violent deaths got less press, as we marched down the main thoroughfare, Sydney Road. We called out violence against women, whoever the perpetrator — including the state. We stood up against violence on the streets and other public places, in schools and workplaces and in the home. Chanting for the end to violence against all women, we raised concrete demands to achieve this. We angrily rejected simplistic calls for increased police powers, tougher bail laws and CCTV cameras. 

Fast forward to 2 January this year: another woman’s life is cut short. Veronica Marie Nelson-Walker lived with her partner of more than 20 years in the Melbourne suburb of Collingwood. The much-loved 37-year-old Yorta Yorta woman was passionate about her culture, she loved art and poetry and was widely respected in the community. Unlike Meagher, Nelson-Walker did not die on the streets at the hands of a stranger. She spent her last hours inside the Dame Phyllis Frost Centre. Prison authorities had a duty of care to ensure her wellbeing. Yet this sister, who was withdrawing from drugs, died alone in a maximum security observation cell, where mandated hourly checks were not carried out. She was checked at 4am and not again until 8am, when she was found dead. 

There’s a link between these deaths occurring more than eight years apart. Adrian Bayley was on bail when he killed Jill Meagher. In January 2017, six people were killed and 27 injured when James Gargasoulas used his car as a weapon in central Melbourne. He was also on bail. Both crimes got saturation media coverage, which fanned over-heated calls for tougher bail laws that politicians, both Liberal and Labor, found hard to resist. This callous and inflexible carceral state is what failed Nelson-Walker.

Man holding sign at protest

Reclaim the Night march, Brunswick 2012. Photo by Alison Thorne.

Twisted beyond recognition. In 2010, the Napthine Liberal government amended the Bail Act 1977. Then in 2017 and 2018, the Andrews Labor government legislated further amendments. Before these changes, the aim of the bail system was to get people to court. Only those charged with the most serious offences were denied bail. But now, many more crimes mandate that people be jailed while awaiting trial, unless they can make a special case. Those who are charged with something minor and then breach a bail condition, for example being out after curfew or having contact with a banned person, are taken into custody. This applies to people as young as 15.

Senior police can hold a person in custody for up to 48 hours before a court hears their application for bail. There is also a presumption against bail, with alleged offenders having to prove why bail is justified rather than the other way around. People are therefore refused bail, because they can’t show a “compelling reason” or “exceptional circumstance,” even though they pose no risk to the community and are unlikely to be jailed if found guilty. Victoria now has the most onerous laws anywhere in the country, although the shift to a presumption against bail has also occurred in other states and territories. 

It was 30 December when Nelson-Walker was arrested and charged for allegedly shoplifting and held in custody. With no lawyer to represent her, she had to navigate her own way through the tough bail regime. On New Years Eve she was refused bail, having allegedly breached a community corrections order. She was then taken on remand to the women’s prison at Deer Park. While she should not have been in jail, once incarcerated the prison had obligations to provide healthcare, which by all reports she did not get. Nelson-Walker was known to have health issues and struggled with substance abuse. Her family was told by other women in the jail that she asked the medical centre for treatment. Inmates report hearing calls for help throughout the night. After Nelson-Walker was found dead, it took eight days before her family was notified. 

Devastating injustice. The reverse onus built into the current bail regime is fuelling an exponential growth of prisoners who are un-sentenced. These people, who have not been convicted of anything, are ripped away from their everyday lives, while awaiting a hearing in the increasingly overstretched courts. Delays of up to two years from arrest to trial are not uncommon. Those charged should expect the presumption of innocence but are, instead, locked up. Prisoners on remand are not even eligible for the support services and rehabilitation programs available to sentenced prisoners! For those found not guilty or given a non-custodial sentence, there is no compensation for their deprivation of liberty. Two-thirds of Victorian women on remand are released without having to serve any more jail time.

Advocates for more repressive powers invoke the spectre of another Bayley or Gargasoulas. Attention grabbing, violent offending by those on bail is very rare. Instead, the impact on vulnerable people who miss out on bail — overwhelmingly women, First Nations people, people of colour, young people and those with mental illnesses — is traumatic. 

Since Meagher was murdered, Australia’s total prison population has risen by 40%. Victoria’s bail laws, coupled with changes in 2013 which tightened the parole laws, have been a significant contributor. 

There’s been such a rapid move away from diversionary programs to keep people out of jail that those on remand now represent 38% of Victoria’s prison population. This is in flagrant disregarded of the Royal Commission into Aboriginal Deaths in Custody, which recommended that imprisonment be the last resort.

These shocking statistics represent real people whose lives, and those of their families, are shattered. Women are more likely to be denied bail than men. This is a major factor behind the growth of women in prison, which is rising at a faster rate than men. The rate of increase is particularly stark for Aboriginal women, whose numbers in the prison population have jumped by 240% in the last five years. 

There’s mountains of evidence that the majority of women being jailed are themselves the victims of a failing system, with a quarter homeless, 60% using drugs daily and a massive 65% the victims of domestic violence — a significant proportion having sustained an acquired brain injury. Some women who defend themselves after years of abuse are then misidentified as perpetrators. 

Jail has a terrible impact for all of these women, who are more vulnerable when they are released, even after short sentences. As Antoinette Braybrook, anti-family violence campaigner and Kuku Yalanji woman from Djirra says, “Just one day in prison can destroy a woman’s life. She can lose her kids, her home, her job, her hope.”

Wrong priorities. Crime in Victoria is actually decreasing, yet the government continues its spending spree on police and high-tech weapons. They continue to ramp up prison capacity, which is filled by refusing bail! Already full, the state’s newest privately run prison, Ravenhall Correctional Centre, is increasing its numbers by 300 — adding bunks to cells, in what is colloquially called “stack and rack.” About 40% of the prison population is in privately run facilities. The drive to maximise profits for operators, such as G4S and Serco, adds significantly to the growing prison rates. 

Both the human and the economic cost of imprisonment is spiralling out of control as jails fill with survivors of abuse, mothers, homeless and Indigenous women! Funds used to build a carceral state need to be urgently redirected to education and training, drug and alcohol and other health services, housing and social programs. A primary pipeline to imprisonment is poverty. For women, their “crimes” are frequently the result of economic desperation or defending themselves from family violence. 

We must create a world where there are no more preventable premature deaths, like those of Jill Meagher or Veronica Nelson-Walker. Calling for tougher law-and-order measures not only misses the root cause, it makes things much worse. We need to build a united front that is multi-racial and working class, fighting for everyone’s right to a safe and fulfilling life. Our immediate focus should be the upcoming state budget in May. Last year, the government allocated nearly $2 billion to fund new prisons and a fraction of that for public housing. It is time to think big and boldly: We need homes and a host of other services, not more police and prisons! 

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