[Theme Music Starts]

DANIEL:

From Schwartz Media, I’m Daniel James. This is 7am.

Traditionally, the idea of bail meant that someone accused of a crime had the right to be free until their trial.

But over nearly 50 years, that has shifted dramatically and bail is now used as a tool for crime prevention.

Jurisdictions across Australia are all moving in the same direction, passing more punitive bail laws with Victoria just passing what it calls "the toughest laws in the country".

But legal and human rights experts warn it will put more children in custody, disproportionately affect First Nations people and potentially increase deaths on remand.

Today, legal academic Professor Marilyn McMahon, on how media pressure and politics are reshaping bail and what it means for justice.

It’s Thursday, March 27.

[Theme Music Ends]

DANIEL:

Marilyn, the Victorian Government recently passed what it says are the toughest bail laws in the country. So can you tell me about these laws?

MARILYN:

Yes, the Premier certainly called them the toughest bail laws ever and said that the reforms will provide a jolt to the system.

Audio excerpt — Jacinta Allan:

“Hi everyone. I just thought I’d jump on here with some breaking news tonight from the Victorian Parliament. We’ve just passed tough new bail laws, the toughest in the country.”

MARILYN:

What was introduced as part of those reforms was that the principle of remand being a last resort for youth offenders was abandoned. People charged with some crimes, including armed robbery, carjacking, home invasion and aggravated burglary will now find it harder to get bail, and the government has reintroduced the crimes of committing an indictable offence while on bail and breaching a bail condition. Now, I think what we saw was that the legislation was rushed through parliament.

Audio excerpt — 10 News Reporter:

“Tougher bail laws passed Victoria’s parliament in a marathon sitting that extended into the early hours of the morning.”

MARILYN:

They come into effect in a state where we've already got tough bail laws, perhaps the toughest in the country already. It's part of a long-term trend where we've seen bail being turned into a pivotal point for crime prevention. Traditionally, bail really operated as a mechanism to ensure people attended court for the hearing of their case. But bail and bail decision-making has become much more about the risk that a person who's applying for bail will commit an offence if released on bail into the community. That really means that bail has been politicised and is now a key law and order issue for us. And it's likely, I think, that what we'll see in coming years is that more than half the prison population in Victoria will be people who will be held on remand. That is, they haven't been convicted, they're being held prior to the hearing of their matter. Now that's, I think, a very disturbing statistic.

Audio excerpt — Speaker at protest:

“The Premier has said that these laws are about reducing re-offending and making the community safe. But for how many decades have governments had reports and evidence on their desks about ways to do this that don't resort to police and prisons?”

DANIEL:

And as these laws were being debated in the Victorian Parliament, there were protests outside. So can you talk to me about the opposition to this bill? What are people saying?

MARILYN:

You had strong opposition to the bill coming from a number of quarters, primarily from legal representatives and organisations, human rights organisations, and especially First Nations people and organisations. Lawyers and legal organisations emphasised the traditional concerns that bail should only be denied in exceptional circumstances because it breaches the right to liberty and also it breaches the presumption of innocence. Community organisations drew attention to the well-known negative consequences if people are denied bail. People can lose their job, they'll be separated from their families, it causes mental distress and also it exposes people to the dangers and the stresses of a prison environment.

Audio excerpt — Speaker at protest 2:

“Haven't we been here before? In 2018, 65 per cent of women were locked up for less than a month and released without a sentence. I am one of those women!”

Audio excerpt — Crowd:

“Shame!”

MARILYN:

You had very strong opposition coming from the Victorian Aboriginal Legal Service and other organisations representing First Nations people because they are so disproportionately affected by harsh bail laws. And we've seen this, the terrible case of Veronica Nelson, a First Nations woman who died in custody after being denied bail for committing minor offences, showed just how the escalation of a minor offence with a vulnerable individual could result in such a terrible consequence.

Audio excerpt — ABC Radio Reporter:

“A Victorian coroner Simon McGregor found today Ms Nelson had been treated in a cruel, inhumane and degrading way by corrections officers and medical staff in the 36 hours she'd been in custody.”

MARILYN:

There's research from the NSW Law Reform Commission that tells us there will be a small portion of people who are denied bail who will ultimately be found not guilty of their offences with which they're charged. That means people will have been incarcerated and served time in prison for offences for which they are found not to be guilty. That's wrong. I think we've also got very strong opposition coming from the Children's Commissioner in Victoria and other organisations representing youth. Basically, what they're pointing to is that we have a breach of our obligations under the United Nations Convention on the Rights of the Child, which specifies that detention should only be a measure of last resort for youth. What we've got now under these reforms is that young people will be treated like adults when bail decision makers have to decide whether to remand them or release them into custody. Very predictably, what we'll now be experiencing is a significant increase in the number of young people who are being detained in prisons and youth centres in Victoria.

DANIEL:

And these laws, as Premier Jacinta Allan said, are the toughest in the country, but other states and territories are all moving in the same direction, are they not?

MARILYN:

They are. I think it's unfortunate, but what you see in other jurisdictions is the same trend towards increasing putting people on remand. Overall in Australia, there's about 41 per cent of prisoners who are being held on remand. And we've seen it in states not only like Victoria, New South Wales, South Australia. What's been driving it over a period of at least a decade now is concern about community safety.

So whereas, say 20 years ago, you had only a small fraction of the prison population being those people who are being held on remand. Today, in some states like the ACT, for example, half the prison population is comprised of people being held in remand. In South Australia, the Northern Territory and New South Wales, it's about 45 per cent of the prison population.

DANIEL:

After the break, how media panic has influenced bail laws

RUBY:

Hi, Ruby Jones here.

7am tells stories that need to be told. Our journalism is founded on trust and independence.

And now, we're increasing our coverage.

Every Saturday until the election, we’ll bring you an extra episode, to break down the biggest political moments of the week.

If you enjoy 7am, the best way you can support us is by making a contribution at 7ampodcast.com.au/support.

Thanks for listening and supporting our work.

[Advertisement]

Audio excerpt — 9 News Reporter:

“From home invasions to stabbings, police pursuits and carjackings, child criminals are breaching bail every three hours.”

Audio excerpt — Interviewed victim:

“It's just out of control.”

Audio excerpt — 9 News Reporter:

“Rodolfo Arena's Jeep was allegedly stolen by teens who were already out on multiple counts of bail…”

MARILYN:

Marilyn, you mentioned that these tougher bail laws we’re seeing in Australia have been influenced by media and political narratives around crime and a growing concern with community safety. So tell me about the pressures and narratives that influenced the introduction of these bail laws?

MARILYN:

I think in Victoria we've seen there's been a recent increase in the crime rate and that has generated considerable concern. We've seen also that police have agitated in relation to the young offenders and they've asked for harsher bail laws to deal with them and we've also seen the Premier introducing the notion of a review of bail laws just prior to the Werribee by-election.

Audio excerpt — Fifi Box:

“Daily, we get calls and messages from Melbournians who are sick of not feeling safe in their own homes. Instead of action, we get empty words from our leaders. Enough is enough.”

MARILYN:

And then you had a massive media campaign conducted by two radio personalities.

Audio excerpt — Fifi Box:

“Join our campaign to petition the Victorian Parliament. It's time for action. Bring about bail reform for repeat offenders that puts the community first…”

Audio excerpt — Brendan Fevola:

“Yes!”

Audio excerpt — Fifi Box:

“…and holds offenders accountable.”

MARILYN:

Then the Herald Sun joined in. And you've got Channel 9 News, which is also promoting fear of crime being committed by people who are on bail.

Audio excerpt — 9 News Reporter:

“Under pressure, the Premier is talking tough…”

Audio excerpt — Jacinta Allan:

“The laws need to be changed and they will.”

Audio excerpt — 9 News Reporter:

“…but not quickly enough for mother of two Adele Andrews, left terrified after machete-wielding thieves broke in while her family slept early Tuesday morning.”

Audio excerpt — Adele Andrews:

“Something’s very, very wrong and I don't know what it's going to take…”

MARILYN:

That's a powerful conjunction of circumstances that favours the introduction of punitive bail laws.

DANIEL:

And this is not the first time that media attention has driven a tightening of bail laws in Australia, is it?

MARILYN:

No, you saw exactly the same thing from about 2012 to 2015. You had a couple of very high profile offences being committed in Victoria. Adrian Bayley, who killed Jill Meagher. Sean Price, who killed Masa Vukotic. And then you had James Gargasoulas, who was responsible for the Bourke Street killings. Those high profile crimes generated, again, enormous media concern. And that media concern drove the Coughlin Inquiry, which in 2017/2018, generated very harsh bail laws in Victoria. So again, what you see is high profile, but unrepresentative crimes driving law reform.

DANIEL:

So there's been a lot of reporting on youth crime in Victoria, in particular, repeat youth offenders driving a rising crime. So what do the stats actually tell us at the moment?

MARILYN:

Well, there's obviously been modelling done by the Victorian government, but they haven't released it. So we don't really know what's driving them. We do know that the police have told us that they are concerned about a small group of recidivist youth offenders. And that is driving their concern for harsher bail laws. What we've seen is an increase in youth crime not only in Victoria, but elsewhere and I think that's been a potent driver of the bail reforms, in particular the abandonment of that principle that you only use imprisonment or remand as a last resort when you're dealing with young offenders in bail.

DANIEL:

So there's a question here about the balance between ensuring community safety, which is a laudable goal and protecting individual rights. So where do you think the balance sits?

MARILYN:

Well, I think we've lost any sense of balance in the current debate. If we take a step back and get away from the headlines and the very emotionally driven media portrayals that we've seen in recent weeks, we have to remember as a community, we have an interest in protecting people's rights. Much of the discussion in recent weeks has presumed that people on bail are guilty of their offences. I think that's deeply troubling. So I think we need to take a step back and realise that once again we are balancing different interests here. There's not only those members of the community who've been traumatised by violent crime and they certainly need our attention. I think the second thing we need to remember is that much offending is related to health issues, drug and alcohol problems, family violence and social disadvantage. Tackling those issues will really contribute to community safety as well, because they underlie a lot of the offending that we're seeing.

But locking up people in prison is a short-term solution. We know that people who've gone to prison aren't deterred. And there's research from the United States that suggests If you put a person in jail, even for a short period of time, we're talking maybe three or four days, you increase the likelihood that further down the track, that person will have more contact with the criminal justice system. So I think we have a really unfortunate paradox. And that is people who are demanding that we put more people in prison to protect the community, may actually be giving us a short-term solution, but a long-term problem.

We've got what I would have regarded as a return to draconian type bail laws that will lock up lots of people who probably shouldn't be in jail. We're capturing a broad category of people. What we really need to do is make sure that we only remand those people who are a serious risk to the community if released on bail. I think that the very broad approach that's been adopted by the government is one that lacks consultation, that lacks adequate reflection, and therefore has all the hallmarks of a regressive bail policy.

DANIEL:

Marilyn, thank you so much for your time.

MARILYN:

Thanks, Daniel.

DANIEL:

You can read Marilyn McMahon’s piece in this weekend's edition of The Saturday Paper, at thesaturdaypaper.com.au

[Advertisement]

[Theme Music Starts]

DANIEL:

Also in the news

Labor’s surprise tax cuts passed through the lower house yesterday, as part of the government’s budget night promise of modest cost of living relief.

The Coalition opposed the tax cuts.

In response, prime minister Albanese accused the Coalition of being quote, “delulu with no solulu”.

AND

Oscar winning Palestinian Director Hamdan Ballal has been released after spending 24 hours detained by the Israeli army.

Ballal was the co-director of No Other Land, a documentary about life under Israeli occupation in the West Bank. On Monday, witnesses recorded Ballal and two other Palestinians being assaulted by around two dozen settlers before being taken by IDF soldiers.

After his release on Tuesday afternoon, Ballal’s co-director Basel Adra said “this might be revenge on us for making the movie”.

You’ve been listening to 7am. We’ll be back tomorrow.

[Theme Music Ends]