Jennifer Keene-McCann brings international human rights law home to Victoria’s Bail Act 1977.
When I teach international law, I often wave my hands in the air separating the ‘domestic sphere’ and the ‘international sphere’. This separation, I explain, is how something could be lawful in the domestic sphere but unlawful in the international. Australia is a dualist system; we can commit to particular principles on the international stage and choose not to implement them domestically.
This separation is partly why I imagine many domestic practitioners do not see international law as a part of their ‘toolbox’ – it exists ‘out there’ somewhere. But international legal principles provide excellent support for strategic litigation.
A perfect example of this is bail.
Victoria further tightened its laws in 2017 and 2018 by increasing the number of offences subject to what is referred to as a ‘reverse onus’ test for granting bail (outlined further below). Now, there is growing concern that not only are provisions in Victoria’s Bail Act 1977 (Bail Act or the Act) too harsh, they are also disproportionately effecting Victoria’s most vulnerable.
Bail as a form of pre-trial detention engages several rights under international human rights law (IHRL): the right to personal liberty, freedom from arbitrary detention, and the right to presumed innocence. Fortunately for Victorian practitioners, these rights are incorporated into state law under the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) (although, unfortunately, not a cause of action themselves). Under section 38(1), Victorian decision-makers must act in accordance with the Charter. The rights enshrined in the Charter derive from treaties signed by the Commonwealth including the International Covenant on Civil and Political Rights (ICCPR) and the International Convention the Elimination of All Forms of Racial Discrimination (ICEDR).
Under Article 9(3) of the ICCPR, pre-trial detention should not be the ‘general rule’, but rather ‘may be subject to guarantees’ to show up to court. Interpreting this provision, the Human Rights Committee General Comment No 35 further describes reasons for pre-trial detention: preventing flight, interfering with evidence, or additional crime (paragraph 38). In practice, the Inter-American Court of Human Rights has restricted purposes of pre-trial detention to solely circumstances that ensure trial (Waldemar Gerónimo Pinheiro and José Víctor Dos Santos v. Paraguay, Case No 11.506, Report No 76/02, -). Further, the determination of any pre-trial detention determination of any pre-trial detention be based must take into consideration the individual’s circumstances and any less restrictive alternatives than detention (General Comment No 35, paragraph 38).
This ‘less restrictive means’ is a regular tenet of IHRL. This is because IHRL recognises that there will be circumstances in which limiting some rights will be necessary. However, in addition to necessity, limitations are only permitted where they are also proportional to the need and non-discriminatory. This is also incorporated in the Victorian Charter under section 7(2).
Section 4 of Victoria’s Bail Act entitles everyone to bail subject to the Act’s limitations. In ‘normal’ circumstances, section 4E places the onus on the prosecutor to submit why granting bail would constitute an ‘unacceptable risk’ that the accused would, if bailed: 1) cause harm to herself or others; 2) commit an offence; 3) interfere with a witness or obstruct justice; or 4) fail to surrender into custody as required under bail conditions. This is in accordance with the limited reasons for preventing bail envisioned by IHRL.
However, under sections 4AA-4D, anyone accused of Schedule 1 or Schedule 2 offences are not eligible for bail unless they show either ‘exceptional circumstances’ or a ‘compelling reason’ (dependent on the relevant section). This is referred to as the ‘reverse onus’ provisions by advocates because the accused bears the onus of justifying why bail should be granted – not the prosecutor. Thus, the provisions create a presumption against bail in certain circumstances, albeit rebuttable.
Interpreting section 7(2)(e) in Momcilovic v The Queen  HCA 34 (see, for example, decisions by Bell J and Crennan and Kiefel JJ), the Justices found ‘less restrictive means’ to mean not the least restrictive measures vis-à-vis the relevant right, but rather least restrictive measures reasonably available in relation to the purpose of the legislation. Notably, the 2017 and 2018 reforms to the Act were made in reference to promoting public safety. However, section 1B of the Act states that its ‘guiding principles’ include, amongst others, protecting community safety and the presumption of innocence and right to liberty.
If we consider the ‘less restrictive means’ principle under IHRL, the ‘reverse onus’ becomes, at best, unnecessary. This is because if the court is able to grant bail because an accused can argue ‘exceptional circumstances’ or ‘compelling reasons’, it remains true that there was a less restrictive way either of promoting public safety or protecting the accused rights available to the court in the first place.
Conversely, if in practice everyone is denied bail under these tests, then there exists ‘a general rule’ against bail in certain circumstances. At worst, a general rule against bail – even if only for a limited set of circumstances – is contrary to IHRL.
Furthermore, the disproportionate impact of these provisions may constitute indirect discrimination, which is also contrary to IHRL. Under IHRL, discrimination may still occur where lawful actions are taken with no intent to unlawfully discriminate. In interpreting ‘discrimination’, the Committee on the Elimination of Racial Discrimination stated that actions may be discriminatory where there is an ‘unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin’ – regardless of the intent of those actions. Further, in relation to sex discrimination, the European Court of Justice found that ‘indirect’ discrimination ‘arises where a […] measure, albeit formulated in neutral terms, works to the disadvantage of far more [of one group] than [another]’ and the measure is not objectively justifiable (Case C- 123/10 Waltraud Brachner v Pensionsversicherungsanstalt,  ECR I-10044, ).
Corrections Victoria statistics indicate that between 2010-2019, the number of unsentenced Aboriginal and Torres Strait Islander prisoners increased nearly seven-fold (see Annual Prisoner Statistical Profile 2019-20, Table 1.4). This in contrast to the total number of unsentenced prisoners increasing less than four-fold (see Annual Prisoner Statistical Profile 2019-20, Table 1.3). This suggests that, albeit in neutral terms, the tighter bail laws may be working ‘to the disadvantage of far more’ Aboriginal and Torres Strait Islander people with no objective justification.
Furthermore, the growth in women prisoners ‘outpaced’ that of men between 2012 and 2017. In noting this increase, a study by the Victorian Crime Statistics Agency found that ‘[37%] of unsentenced women would have been subjected to a reverse onus test in 2012, which increased to 74% in 2015 and 79% in 2018’. This suggests the compounded disadvantage Indigenous women in Victoria may face when applying for bail.
Colleagues and I have submitted similar arguments to a recent Victorian Parliamentary criminal justice inquiry. However, failing legislative change, it is open for domestic practitioners to take up these challenges. IHRL provides helpful principles and potentially powerful comparative jurisprudence in relation to issues that hit close to home. And with the Victorian Charter, I suspect bail is ripe for an international human rights legal challenge – it suggests that international law does not just happen ‘out there’ but can be useful ‘in here’.
Jennifer Keene-McCann is Research and Policy Fellow at the Asia Justice Coalition and a Victorian solicitor.