The number of people in Victoria’s prisons who have not been found guilty of a crime has grown more than 140% in just under a decade and now costs taxpayers more than $1m each day.
Despite this, the Andrews government hasn’t reviewed changes to the state’s bail laws that have contributed to the increase, delaying the possibility of reform until after the November state election.
From June 2014 to June 2022, the sentenced prison population in Victoria dropped by 24%, thanks in part to Covid-19, which led to a reduction in jail terms. However, the number of those who hadn’t been sentenced soared by 143%.
The latest figures from Corrections Victoria showed there were 2,879 unsentenced people in custody, making up 44% of the total prison population. Of the 353 women in custody, the majority (56%) were unsentenced.
It costs Victoria about $1.1m a day to keep unsentenced people in custody, according to the latest Productivity Commission report on government services.
Unsentenced prisoners are yet to be convicted of a crime but are remanded in custody, having either not applied for bail, been refused, or failed to meet conditions, such as a surety.
Legal and human rights groups credit the surge in Victoria’s unsentenced prison population to changes to Victoria’s Bail Act, which began in 2013 when two bail-related offences were created.
Further reforms were introduced in 2017 and 2018, after it was revealed James Gargasoulas was on bail when he killed six people on Bourke Street mall.
Before the changes, an accused had the “presumption of bail”. Now, a “reverse onus” test applies, requiring them to show “compelling reasons” or “exceptional circumstances” to be released on bail, in addition to proving they aren’t an unacceptable risk to the public.
Tania Wolff, president of the Law Institute of Victoria, says the government response to the Bourke Street attack and other high-profile crimes wasn’t unusual but had dramatic consequences.
“Policy that flows from traumatic events in a quick, rapid fashion is very rarely well considered and we are seeing the effect of that every single day in Victoria’s prisons,” she said.
Wolff said prior to the 2017-18 changes, the reverse onus test applied only to people accused of violent and dangerous crimes but now a broad range of offending is included. People can be denied bail if they lack access to stable housing, or if they engage in repeat, low-level wrongdoing such as theft.
A recent parliamentary inquiry into the justice system found the changes have disproportionately affected women, Aboriginal Victorians, children, young people and people living with a disability, and urged reform.
Among them is Veronica Nelson, a Yorta Yorta, Gunditjmara, Dja Dja Wurrung and Wiradjuri woman who died while on remand for shoplifting offences in January 2020.
Police had opposed bail because Nelson’s offending met the threshold for the “exceptional circumstances” – she was accused of having breached bail and having committed an indictable offence while on bail.
The coroner is investigating Nelson’s death and the effects of the state’s bail laws, with findings expected to be released later this year.
Nerita Waight, chief executive of the Victorian Aboriginal Legal Service, says there are 35 Aboriginal people arrested each day in the state, with the majority accused of non-violent property or economic crimes, as well as low-level drug offences.
“They’re all potential Veronica Nelsons,” she said.
In 2018, the then attorney general Martin Pakula signed the Aboriginal Justice Agreement, which included a commitment to “research the impact of the 2017-18 bail reforms on Aboriginal accused”.
A government spokesperson told Guardian Australia that work remained “in progress”.
An overarching review of the Bail Act hasn’t been completed since changes in 2018.
“We know that more needs to be done to address the over-representation of Aboriginal Victorians in the justice system – that’s why we’re implementing a range of reforms to reduce the rate of Aboriginal people on remand and in custody,” the spokesperson said.
Waight said the government’s position on bail reform contrasts with its work on a treaty with Indigenous Victorians and a truth-telling inquiry currently under way.
Greens criticise ‘tough on crime politics’
The Victorian Greens MP Tim Read said the Andrews government’s “tough on crime politics” had left the state “spending millions every week repeatedly locking up disadvantaged offenders for minor offences like shoplifting”.
In 2018, the Victorian opposition leader Matthew Guy ran a law and order election campaign, which included a proposal that any breach of bail – no matter how minor the alleged offence – would mean people were remanded in custody.
Wolff said the public deserved a more nuanced discussion on bail reform.
