8 / 11 / 2021

Bail Laws & Crowding at AMC Canberra

Bail Laws and Crowding at Canberra’s Gaol

The Alexander Maconochie Centre (AMC), Canberra’s much-lauded ‘human rights compliant’ prison is not only over-populated but has the highest daily cost per prisoner rate in the country, costing taxpayers $415.00 per detainee per day.[1]  This is despite the ACT having the second-smallest population in Australia at currently just under 432,000 people.[2] The AMC is overfilled with sentenced prisoners and people on remand who are awaiting an outcome in their criminal matters; which of course (though often forgotten) includes the possibility of charges being dropped or the court acquitting them.

Whether or not a person is remanded in custody is not always so straightforward. The first few decisions in this process are up to the police. When a decision has been made to charge someone with a criminal offence, the police officer must then consider if a summons if enough to make that particular person attend court. This means the charge is registered, a notice advising the court date is provided (usually delivered to them later), and the person is left to their freedom. The police consider the type of charge, criminal history of the person, available address and a number of other factors when determining if a summons is appropriate. If not, an arrest is made and the person is transported to the watchhouse.

In practicality, this ought to be a clear-cut process. Say you were driving and it turned out you’d forgotten to pay some traffic fines so the RTA disqualified your licence. You’d also forgotten to renew your registration because we don’t have those little stickers on our cars anymore. You get pulled over by police, who run a check and find out you have no criminal history. You have not been driving badly and you have not been drinking, you were on your way to work and you provide your home address. These offences are regulatory, and you would likely receive some sort of fine at court. You should be issued a summons. However, you may also be Indigenous. Or maybe you are tired and your eyes are bloodshot, or you are not as polite as someone thinks you ought to have been. You will probably be arrested and taken to the watchhouse.

Under some circumstances, you can be released from the watchhouse later on ‘police bail.’ Bail may have some conditions attached to it, but at the very least will have an undertaking to appear at court on a particular date. Bail, whether by police or by the court, is a step up from summons because if you do not comply with your bail conditions, you can be arrested again and remanded. Failing to attend a court date while on bail is not only a breach of a condition, but a criminal offence in and of itself which often carries full-time imprisonment as a sentence.

Whether or not you get police bail is again, largely dependent on the types of charges, your criminal history, and whether or not the police think you are or will behave when released. Hopefully, if you had the regulatory charges and no history we talked about above and were still arrested, you would be released on police bail. You may have been charged with something entirely different. If you are charged with a family violence offence, this triggers section 9F of the Bail Act, which means the police must not grant you bail unless they are satisfied you are no danger to the person they are concerned about. This is an important protective feature in the right situation, however it is also used by police to avoid granting bail for family violence charges altogether. In the ACT, family violence charges relate not only to violent offending but to any type of offence that occurs in a ‘family violence context.’ This may be an assault on a domestic partner, but it may also be a Christmas card sent in contravention of a Family Violence Order or someone breaking a pot plant belonging to their sister.  If you have broken a pot plant, but you have no criminal history, do not live your sister and have no intention to speaking to her anytime soon, the way section 9F is used means you will likely not get police bail and have to wait (maybe overnight) until you are brought before a Magistrate, just like the person in the next cell who hit his partner again and who the watchhouse sergeant knows by first name now. Failing to summons or not granting police bail becomes not only an immediate problem for your bail but for the Magistrate who later sentences you because they must now take into account the time you have spent in custody, when they may have never even considered custody as a sentencing option because it is not warranted in your circumstances.

Further increasing the remanded population in the ACT is the operation of section 9D of the Bail Act. This provision bars the court from granting bail to a person who is charged with ‘serious offence’ while a charge for another serious offence is still outstanding unless ‘special and exceptional’ circumstances can be proved. A serious offence for this purpose is any offence that is punishable by imprisonment for 5 years or longer. What special and exceptional circumstances exactly are is variable. They can be one thing or a combination of things, but they are always difficult to prove because of their need to be ‘exceptional’.

Even if you are not subject to section 9D, you may only apply for bail twice before you also have to show fresh evidence or a change in circumstances before being allowed to apply for bail any further times. This makes it very important to make your bail applications the best they can be because if they are not, you may find yourself remanded for a number of months until your matter is finalised.

These are only a few examples of the bail process that contribute to the high level of people on remand. Other factors which also contribute to remand populations include housing unavailability and lack of access to support services. Like everywhere else in Australia, Indigenous persons are remanded at higher rates than the general population. The ACT’s rate of Indigenous incarceration has grown more than any other state in the 10 years between 2009-2019, clocking out at an appalling increase of 279 per cent.[3] This figure, and the overall amount of people on remand, could be bettered by proper application and improvement of the bail system. Not only would this allow for increased personal freedoms and humanity, it would reduce the financial cost to rest of the community.

Priyanka Koci, Lawyer

[1] https://www.pc.gov.au/research/ongoing/report-on-government-services/2020/justice/corrective-services

[2] https://www.abs.gov.au/statistics/people/population/national-state-and-territory-population/latest-release

[3] https://www.canberratimes.com.au/story/6884360/act-government-flags-review-of-indigenous-incarceration-rates/