Unsentenced prisoners make up a third of Australia’s prison population as bail refusals boom

Advocates urge overhaul of laws to ensure people aren’t needlessly funnelled into jail

The number of unsentenced people in Australian jails has risen more than 120% over 10 years, to account for more than a third of the total prison population, as human rights advocates urge reforms to ensure people aren’t needlessly funnelled into the criminal justice system.

More than 15,000 prisoners, or about 35% of the nation’s prison population, were unsentenced – awaiting trial, sentencing or deportation – in 2021. In 2011, when there were 6,723 unsentenced prisoners, that cohort accounted for less than 25% of the prison population.

It comes as pressure builds on the Victorian government to overhaul its strict bail laws after a coroner on Monday handed down damning findings into the 2020 death in custody of a First Nations woman, Veronica Nelson. The coroner described the state’s bail legislation as a “complete, unmitigated disaster” that resulted in a grossly disproportionate number of Indigenous women being put behind bars.

According to data from the Australian Bureau of Statistics, Victoria has the fastest growing population of unsentenced people in Australia, with the cohort increasing from 18.5% of all of the state’s prisoners to 43.9% in 2021.

Mindy Sotiri, the executive director of Justice Reform Initiative, said tough-on-crime legislative changes in different states and territories had created a priority shift in “thinking about risk in community over all of the other factors”.

“It’s a deeply flawed argument because we know the experience of prison, in any form, makes it more likely that someone will go on to reoffend,” she said.

“We have these kneejerk policy responses which are sort of messaged as a way of keeping the community safer, but of course have no evidence at all of keeping the community safe.”

Guardian Australia analysed ABS prisoner figures in the 10 years until 30 June 2021. The number of unsentenced people nationwide as a portion of total prisoners increased from 23.1% to 35.3% over that time.

For Indigenous prisoners, the proportion of those who were unsentenced rose from 23.5% in 2011 to 36.2% in 2021, compared with 22.9% to 34.7% for non-Indigenous people over the same period.

Jamie McConnachie, the executive officer of the National Aboriginal and Torres Strait Islander Legal Services, said the “mass incarceration” of First Nations people was “causing immense harm to our communities and represents an urgent human rights crisis”.

The analysis revealed Western Australia had the second-fastest-growing cohort of prisoners on remand, with an increase from 17.9% in 2011 to 30.6% of total prisoners in 2021. This was followed by Tasmania where the same cohort increased from 20.4% to 30.4% of the total prisoner population during the same time period.

Legal groups have described Victoria’s bail laws – tightened after the 2017 Bourke Street massacre – as the most onerous in the country.

The coroner Simon McGregor on Monday urged the Andrews government to reform the state’s bail laws as he handed down findings into the death of Nelson, who was on remand for suspicion of shoplifting and two outstanding warrants.

McGregor said 2018 changes to the state’s Bail Act had resulted in people routinely being remanded for low-level crimes who posed no risk to the community.

Under the tightened laws – designed to prevent violent offenders from being released into the community – a person must demonstrate “compelling reasons” or “exceptional circumstances” to be released. Previously, there was a lower threshold of a “presumption of bail”.

On Tuesday the Victorian premier, Daniel Andrews, vowed to take “full responsibility” to enact changes across bail laws and prison healthcare that led to Nelson’s death, which the coroner ruled was preventable.

In 2020 the Queensland government passed bail legislation to target repeat youth offenders. The Northern Territory in 2021 passed legislative changes to make it tougher for youth offenders to be granted bail.

Lorana Bartels, a professor of criminology at the Australian National University, said unaffordable housing and the rising cost of living were non-legislative reasons the number of people on remand had increased over the past decade.

“Housing is but one factor that a magistrate will take into account in deciding whether to bail someone,” she said. “But if there’s not really suitable housing, it suddenly becomes a more viable proposition to say, ‘OK, well, I’m gonna remand you in custody.’

“The appropriate response will be massive, massively greater investment in public housing and mental health and education programs.”

Sotiri said Australia lacked bail-support and diversion programs to support people who were released into the community.


Adeshola Ore

The GuardianTramp

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