Bail Law Reform and Political Reflexivity

As we reach the 34th Anniversary of the Royal Commission into Aboriginal Deaths in Custody the call for implementation of recommendations persists. Most importantly Recommendation 92 “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. (3:64).” 

Just as remand data for Aboriginal peoples and whole of state were seeing positive declines after introducing part of Poccum’s Law, Victoria has now gone backwards in its progress to reduce incarceration rates. In March 2025 the Victorian Government has passed what they have labelled as the “toughest bail laws in Australia” (Premier of Victoria Hon Jacinta Allan MP, 2025).

The inherently political nature of introducing these sweeping reforms is another example of politicians reflexive application of criminal law to deal with complex social issues.   

Systemic erosion of human rights protections and dismissal of implications for the crisis of deaths in custody and overincarceration of Aboriginal peoples is a continuation of attempted colonial dominance. The multigenerational traumas inflicted on our communities are compounded by the criminalisation of our youth against advice from community and human right advocates.   

Aboriginal women are the fastest growing cohort incarcerated in Victoria, imprisoned at 21 times the rate of non-Aboriginal women. They are significantly overrepresented in the remand population, meaning that Aboriginal and Torres Strait Islander women may be less likely to be granted bail by the court than non-Indigenous people. Many are entering the justice systems with background of complex trauma, with majority having been the victims of domestic and systematic gendered-violence.   

The EMH Safe, Connected and Autonomous: Why we need better housing for women experiencing violence report, states that 54.7% of Relink and Reconnect Program Participants have no home to go to when they leave prison. Out of this percentage, 39.5% of these people have chronic illness or disability and 7% have dependent children. These women are eligible for support. For women on remand, they are often ineligible for supports whilst on remand, including limited healthcare access.  

It is well documented that any time served, including remand, increases the risk of reoffending, homelessness and adverse consequences for reunification of children with their mothers.   

The immediate and future impacts on Aboriginal women include:

• An increase of women being remanded in correctional facilities

• Exposure to racist behaviours and dehumanising treatment of correctional staff

• Exposure to lockdowns impeding on physical and psychological wellbeing

• Exposure to coercive control

• Compounding human rights violations due to lack of prisoner rights

• Increased risk of deaths in custody.

Despite two prison women’s prisons in Victorian Dame Phyillis Frost Centre (DPFC) and HM Tarrengower Prison sitting at less than half capacity, we have been informed that due to a limited staffing capacity at DPFC, women are subjected to ongoing and frequent lockdowns. It is noted that these lockdowns are partial day lockdowns, therefore, women are not credited time off their sentence for these lockdowns.   

Australia has repeatedly been called out for human rights violations related to the justice system. This includes persistent overincarceration of Aboriginal peoples, degradation of women prisoners, inadequate health services, exacerbation of mental illness by through solitary confinement, overcrowding and inadequate access to rehabilitative services.  

Poccum’s Law is an example of grassroots advocacy backed by legal expertise to create systems change to address disproportionate representation of Aboriginal peoples across criminal justice statistics. The inhumane treatment and preventable death of beloved Aunty Veronica Nelson spurred community action to safeguard against the “unmitigated disaster” of Bail Law Amendment 2023. This process exemplified truth telling and learning from the past to prevent future community crises. The marked drop of Aboriginal peoples being held on remand with a decrease of 14.3% within the first five months of implementation. However, the opportunity to experience and measure this pivotal reform has now been replaced by detrimental draconian law.  

Women in our communities ensure the strength of cultural connection for youth, promote strong identities, community responsibility and resilience.

Cultural safety is denied through colonial mechanisms of intergenerational institutionalisation. Mechanisms of racial vilification and control established through political debate, lawmaking, policy and process are inherited colonial practices used in an attempt to silence marginalised communities.  

As a grassroots organisation we continue to uphold the voices of our communities to establish pathways towards justice and peace. The ongoing need to address colonisation as a precursor for dominant societal attitudes and representation of violence against Aboriginal women and children is imperative. Women must be empowered and resourced to design and implement supports in line with these identified aspirations. Elizabeth Morgan House Aboriginal Women's Service will continue our work to uphold self-determined aspirations of Aboriginal Women and Children to live free from violence and discrimination.