By Rachel Eddie
Warning to Aboriginal and Torres Strait Islander readers: This story contains images and references to a deceased person.
A Victorian government proposal would delay bail reforms for another year despite a coroner calling in January for the urgent scrapping of provisions he labelled a “complete, unmitigated disaster”.
The Age can also reveal draft state government working documents ignore the coroner’s recommendation to remove the “unacceptable risk” test that remanded in custody people accused of committing an offence while already on bail.
Attorney-General Jaclyn Symes, with Premier Daniel Andrews, is expected to introduce a draft bill for bail reforms in state parliament in coming weeks.Credit: Joe Armao
Attorney-General Jaclyn Symes is expected to introduce the government’s reform bill in state parliament in coming weeks following six months of consultations, sparked by the coroner’s report into the death of Aboriginal woman Veronica Nelson while in custody.
Nelson, a 37-year-old Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman whose death was found to have been preventable, died alone in a cell at the Dame Phyllis Frost Centre in January 2020 of a rare gastrointestinal condition while also suffering opiate withdrawal and malnutrition. She had been arrested for shoplifting and failing to appear on bail.
Veronica Nelson died in custody at the Dame Phyllis Frost Centre in January 2020.
The government had tightened the law after James Gargasoulas killed six people in the 2017 Bourke Street massacre while on bail. The 2018 changes expanded the “reverse onus” test, requiring people accused of a wide range of offences to prove “compelling reasons” and “exceptional circumstances” to be granted bail.
Coroner Simon McGregor said in January that the provision, which he found breached the charter of human rights, should be repealed in an urgent review after the number of Aboriginal women in jail almost doubled within a year of its introduction. Many were accused of low-level offences they had not been found guilty of.
The government committed to carefully considering the coroner’s recommendations and acknowledged there was a pressing need to stop vulnerable people being disproportionately remanded for low-level offences.
But its proposed reforms would not be implemented for another 12 months after being introduced in parliament, according to working documents from the Department of Justice and Community Safety obtained by The Age. The documents say this would be a feasible time frame.
Aboriginal, law and human rights advocates, and experts who have for years called for wholesale and urgent change, are likely to be left angered.
The draft plans go some way to addressing the coroner’s recommendations, but appear to fall short in some key areas. Symes has previously said there could be further reform.
The working documents show the reverse onus test would be abolished for children, except for those accused of terrorism offences or murder.
While adults accused of bail-related offences would no longer be caught up in the provision, as recommended by the coroner, under the proposal all other offences currently captured by the test would remain.
A further test, the “unacceptable risk” test, remains and would be expanded. A person could still be refused bail if accused of carrying out an offence while on bail for a range of other offences, for example, against the recommendation of the coroner.
A person would be remanded under this second test if they posed any risk to any person, which could include self-harm, as well as property-related offences.
The Police Association of Victoria had publicly warned against weakening the bail laws specifically for those at risk of committing property offences.
A person would also be remanded, under the second test, if there was a risk of obstructing the course of justice or failing to surrender into custody in line with bail conditions, or if they were accused of an offence while awaiting sentencing or on remand for another offence.
Currently, a person at risk of committing any offence could be denied bail, which would no longer be the case under the government’s proposal to meet a recommendation from the coroner.
Greens justice spokeswoman Katherine Copsey said the government knew what needed to be done while vulnerable people who had not yet faced trial remained in custody “for no good reason”.
Veronica Nelson’s partner, Percy Lovett, and mother, Aunty Donna Nelson, are surrounded by supporters in January.Credit: Joe Armao
“That’s why we need meaningful bail reform now, not in 12 months. Waiting another year to implement these changes will have tragic consequences for First Nations Victorians,” Copsey said.
She said the government should scrap the reverse onus test entirely rather than limiting it and that she looked forward to seeing the bill and working with the government to get the reforms right.
“Without urgent and meaningful reform, the Victorian Labor government’s enduring legacy may well be that their justice policies were directly responsible for the imprisonment of more First Nations Victorians than at any time in recorded history.”
Veronica Nelson’s family outlined their vision for change, referred to as Poccum’s Law (“Poccum” was Nelson’s nickname as a child), in March.
That blueprint said the presumption against bail should be removed, that bail should be granted unless there was a specific and immediate risk to the safety of another person, a serious risk of interfering with a witness, or a demonstrable risk the person would flee the state. Poccum’s Law says a person must not be remanded for an offence unlikely to attract a jail sentence, and that all bail offences should be removed.
Police and courts are required to consider whether a person is Aboriginal before denying bail, which would be strengthened under the government’s proposal.
Under the draft changes, decision makers would also need to consider whether the accused, if found guilty, was likely to receive a jail sentence. And an accused, if denied bail, would be allowed to make a subsequent bail application without having to bring new facts, as was recommended.
Tearfully handing down his findings in January, McGregor described the evidence in Nelson’s death as confronting and traumatic. He said she was treated inhumanely, spending her final hours begging for help that never came.
A government spokeswoman said it would continue to work with relevant parties and would have more to say in time.
“We have announced plans to introduce reforms to our bail legislation this year, to ensure that remand and custody are used to keep Victorians safe, not to unnecessarily imprison vulnerable community members for minor crimes,” she said.
“At the same time, we have a responsibility to protect Victorians from serious offending – and we will not weaken the laws when it comes to those who are a significant risk to people’s safety.”
Images contained in this story were released to the media with permission from the family. For crisis support run by Aboriginal and Torres Strait Islander people, contact 13YARN (13 92 76).
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