Bail laws create a hurdle too high for many

Victoria is experiencing a homelessness crisis, and the justice system makes it harder for people to escape it.

Those who find themselves without a home, sleeping rough or street-bound experience severe feelings of dislocation from the community. They are disconnected from family and society, stripped of their dignity and often desperate. Mental health problems, drugs and alcohol are often present and play a significant role in creating fertile ground for criminal offending.

Victoria is experiencing a homelessness crisis.Credit:Paul Jeffers

Living on the streets, in your car, in crisis accommodation, in boarding houses or even a tent can be dangerous and frightening. The nights are dark, long and cold but the days are longer and darker. Offending in order to cope with these circumstances, such as substance abuse, trespass, theft, physical altercations or more serious offending, is commonplace.

When someone in these circumstances comes in contact with the criminal justice system it can be a significant opportunity for intervention, to engage support services and encourage rehabilitation. However, our current criminal justice system operates against this proposition – from bail laws to sentencing, Corrections policies and policing.

Those without stable accommodation, who battle drug addiction and mental illness, are disproportionately impacted by the criminal justice system. They become entangled in a system, shunted between services, crisis accommodation and prison. The cycle of offending and abuse continues, and the criminalisation of poverty is justified.

When arrested for a minor offence of theft or trespass, the state of homelessness increases some of the unacceptable risks identified by our bail laws – such as that they may continue to offend, they are a risk to the welfare or safety of members of the public, or they may fail to appear in court.

The state of homelessness increases some of the unacceptable risks identified by our bail laws.Credit:Pat Scala

Often a court will grant bail for low-level offending because the offence itself may not warrant a term of imprisonment. But the reality is that without secure accommodation, available treatment for addiction or mental health issues, and access to supervision, the opportunity of release on bail becomes uncertain, particularly if the person is already on bail or subject to a court order.

Various combinations of circumstances, even for low-level offending, elevates the threshold to be reached before being considered for bail. Courts will be required to be satisfied of exceptional circumstances as to why a person should be released on bail. It is a very high bar to overcome, particularly for those with few resources to draw upon.

There needs to be an urgent review of the court requirements for bail for low-level offenders, to ensure people are not placed at serious risk of remand should their offending continue.

There needs to be an urgent review of the services which can support a person who is struggling with mental illness, homelessness and drug addiction when they find themselves on bail – to treat the cause of the offending and not punish their social exclusion.

There needs to be an urgent review of the court requirements for bail for low-level offenders.

Jail on remand should never be an alternative for accommodation. Jail should never be an alternative for a detoxification facility. It is not the purpose of jail, and this needs to be addressed.

Support can be provided by our criminal justice system and not frustrated by it. This can be achieved with better accommodation options than boarding houses, better access to detox and rehabilitation centres than waiting lists, better co-ordinated and resourced mental health services than the emergency department at a public hospital.

Our homeless are a significant concern for our community and for many the situation is described as frustrating, unsightly, intimidating and undesirable. But it is the state of homelessness that is undesirable – not the homeless themselves who deserve our collective compassion, understanding and adequate support.

Melinda Walker is an accredited criminal law specialist.

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