There are occasions when competing public policies advanced by our governments come into collision with one another.

Presently both the federal and state governments are focused on law reform to assist and support victims and potential victims of family and domestic violence. At the same time, our state government and others aim to reduce the ever increasing number of Aboriginal and Torres Strait Islander peoples who are in custody either as sentenced prisoners, or unsentenced remandees yet to be tried.

The disproportionate number of Aboriginal and Torres Strait Islander peoples in our correctional facilities has been a concern for a long period of time, and the trend is not getting any better.

Our state government has tabled a Bill it intends to pass into law, that will directly drive up the number of Aboriginal and Torres Strait Islander peoples who will end up incarcerated. How so? Emulating recent amendments to the Bail Act in New South Wales, our government too proposes amendments to our own Bail Act, which will have a discriminatory and disproportionate impact on Aboriginal and Torres Strait peoples.

The proposed amendments to our Bail Act are as follows:

‘ Part 2—Amendment of Bail Act 1985

3—Amendment of section 11—Conditions of bail

A grant of bail to an applicant who has been charged with an offence against section 31(2aa)(b) of the Intervention Orders (Prevention of Abuse) Act 2009 in respect of an order that is a recognised DVO within the meaning of section 29D of that Act must be subject to electronic monitoring conditions (unless the applicant is a child).

Section 31(2aa) – currently reads as per below

Despite any other provision of this section, if a person contravenes a term of an intervention order (other than a term of an intervention order imposed under section 13) and either—

a.       the contravention constitutes a second or subsequent such contravention;

b.       or (b) the act or omission alleged to constitute the contravention involved physical violence or a threat of physical violence…’

This proposed amendment seeks to support victims of alleged family and domestic violence who have already resorted to obtaining an Intervention Order (formerly known as a restraining order) against another person relating to allegations of family and domestic violence, by placing specific statutory requirements around how such an accused person will be able to qualify for bail pending determination of an alleged offence.

But in doing so, it will directly lead to an increase in South Australia’s unsentenced prison population, disproportionately so with respect to Aboriginal and Torres Strait Islander peoples.

As I have written before, law reform is often drafted and enacted with a city-centric focus and approach. Yet 30% of Australians live outside of major cities, in rural, regional and remote locations. This is no more so than with many Aboriginal and Torres Strait Islander peoples, who often live in remote and very remote areas.

It is a simple fact that electronic monitoring cannot occur in those areas, for instance in the APY Lands. This means that any requirement that calls for electronic monitoring to permit bail cannot be granted to an alleged offender who lives in that area, or in similarly remote or regional locations.

If we look then at the alleged offenders who appear for instance in Port Augusta courts, those accused of family and domestic violence and breaches of Intervention Orders are disproportionately Aboriginal and Torres Strait Islander men. All of those alleged offenders will not and cannot qualify for bail if this amendment to the Bail Act is enacted.

Just like other laws that discriminate against those who live in rural, regional and remote locations, such as those requiring mandatory disqualification from driving, these laws if passed by the Parliament will set a different standard for Australians in the country as distinct to those in the city, and are thus plainly discriminatory, particularly against Aboriginal and Torres Strait Islander peoples.

There are elements that make this even more problematic. Rarely do Aboriginal women give evidence against Aboriginal men for alleged family and domestic violence. Almost always such charges are withdrawn because of the unwillingness of the victim to attend the court to testify. If it is certain knowledge that by reporting an Aboriginal man for alleged domestic violence or a breach of an Intervention Order, that that man will not be granted bail and returned to community but held in custody, there is a genuine question as to whether the report will be made to police in the first place. Additionally, then, these amendments may perversely result in driving the problem ‘underground’ and making matters worse, not better.

There is also a genuine question as to whether by placing Aboriginal and Torres Strait Islander offenders in custody works as any deterrent at all. Some academics in New South Wales have made the same point more broadly about the bail reforms in that State. There is no evidence, empirical or otherwise, that incarceration alone leads to a reduction in family and domestic violence. That is because family and domestic violence is a complex problem with no silver bullet, and certainly not one solution.

These laws if passed by Parliament will set a different standard for Australians in the country as distinct to those in the city, and are thus plainly discriminatory, particularly against Aboriginal and Torres Strait Islander peoples

It is well recognised that a matrix of supporting measures is required to help those impacted by family and domestic violence, usually women and children. These measures include support from specifically designed services, government and non-government, to help families escape the family home and live independently; that create a framework to protect victims of family and domestic violence. They may include housing, money, and other material support for victims, and education and rehabilitation for offenders. There is no easy solve to our current epidemic of family and domestic violence.

Once again however, we find that rural, regional and remote areas have been ignored. Such support and such services are largely missing in those areas, and certainly in the APY Lands. It may be tempting and easier to amend bail laws than spend big on the support and services that are needed in remote parts of our state. But will a change in bail laws successfully address the underlying problem? Investing in adequate services and support is a much harder mountain to climb, and it is most certainly not presently being achieved in the APY Lands.

In addition, every time bail laws are tightened it is another chip from the most important principle of our criminal justice system – the presumption of innocence. People refused bail often wait months and years for trial, and may be acquitted. Not all complaints made to police stand up when scrutinised by a court. Every day spent in custody for a crime not proved is an injustice.

The Australian Bureau of Statistics tells us that from June 2022 to June 2023, unsentenced prisoner populations rose by 7.1% in Australia. Nearly 40% of Australians presently in prison are unsentenced – an indictment for a country said to respect the rule of law.

In September 2023 according to The Australia Institute, Aboriginal or Torres Strait Islander people were 17 times more likely to be incarcerated in Australia than a non-Indigenous person. One in 22 Aboriginal and Torres Strait Islander adult men in Australia are in prison. Further, the Australian Government’s Australian Institute of Health and Welfare calculated in November 2023, that 32% of the adult prison population in Australia were Aboriginal and Torres Strait Islander people; an appalling statistic given that those Australians make up but 3.8% of our population.

Yet here we are about to enact law that directly discriminates against that group of people in our society and can only increase and add to the number incarcerated. It begs the question whether this amendment has been thought through by the Attorney-General and his Department. And what has the State Voice got to say about this?

None of this should diminish from efforts made by Australian governments and their agencies to reduce family and domestic violence, which is a scourge in Australian society. But when we witness a collision between differing government priorities, it needs to be acknowledged, and be accompanied by an explanation of why in the advancement of one positive public policy initiative, we lose ground in the other.

Prison is the ultimate blunt instrument. Coupled with the fact that there are no certainties in how a matter before the criminal justice system will turn out, we must acknowledge the particular circumstances of some South Australians who will be unfairly impacted by this proposed change to the Bail Act and not proceed until we have achieved a level playing field.

When we have a situation where a group in our society cannot have access to electronic monitoring thereby losing any opportunity for bail – instead to be left rotting in a gaol nearly 1,000 kilometres away from their families and relatives and home in, for instance, Port Augusta Prison – something is wrong. That is why in most instances we have a presumption in favour of bail.

This amendment can only work if the State Government simultaneously invests in remote regions in order to give effect to the options set out in the amendment, in particular the ability to electronically monitor all accused people faced with this type of allegation, wherever they reside in the State.

Here we have the government asking our Parliament to adopt a law that virtually guarantees an increase in Aboriginal and Torres Strait Islander men in custody because of their unique disadvantage of living remotely and will ramp up the number of our unsentenced prisoners, more particularly Aboriginal and Torres Strait Islander men.

Not only is that directly in contravention of its own policy stance, it is blatantly discriminatory and patently unfair.

The Bill looks a lot like a copycat move proposed consequent to the New South Wales amendments, lazily drafted, so much so that it is bound to lead to unforeseen consequences and create another form of injustice based on discriminating against some in our society.

Of those people, men of Aboriginal and Torres Islander descent who live in remote communities are unquestionably the worst off. We need to ask ourselves whether in the pursuit of one public policy goal, we are comfortable with this outcome? If we are not, this piece of proposed legislation needs a serious re-work. Take it back to the drawing board.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.