Case Explained: Bail laws impact First Nations people – Legal Perspective

Isabella Higgins: New research shows a trend towards harsher bail laws in Australia is putting more Indigenous Australians behind bars. These kinds of reforms have been introduced in some states and territories to try and combat street and youth crime. The study suggests it’s contributed to an increase in the Indigenous prison population at a faster rate than the non-Indigenous prison population. Bridget Fitzgerald with this report.

Bridget Fitzgerald: Despite years of national targets aimed at reducing the over-representation of Aboriginal and Torres Strait Islander people in prisons, incarceration rates are getting worse. Nerita Waight is the acting co-chair of the National Aboriginal and Torres Strait Islander Legal Services.

Nerita Waight: We feel like often enough we’re just beating our heads up against a brick wall because for generations we’ve been saying stop putting billions upon billions of dollars in prisons and start putting them in the support services.

Bridget Fitzgerald: A study by the Australian Institute of Criminology out today has found recent reforms across Australia are making it harder for people to get bail, and Aboriginal and Torres Strait Islander people are disproportionately represented. Between 2013 and 2024, the Indigenous adult imprisonment rate increased 46 per cent, compared with a 10 per cent increase in the non-Indigenous rate.

Nerita Waight: Whenever there is a high profile or public incident of violence or other offending, suddenly there’s this push that the bail laws are the things that have failed. It’s never the decision maker, it’s never the system, it’s always the law that has failed. And I think that’s why we’re seeing this continual erosion of the common law doctrine around presumption of innocence.

Bridget Fitzgerald: Between 2019 and 2025, harsher bail amendments were introduced in every state and territory except Tasmania. Dr Samantha Bricknell is from the Australian Institute of Criminology and one of the study authors.

Samantha Bricknell: There’s obviously been a lot of commentary about increasing crime rates, particularly around youth crime and the sorts of crimes that the young people are alleged to have committed and so there have been a lot of amendments relating to youth offenders, again with the expansion of show cause offences, so the sorts of offences that they have to sort of demonstrate why they should be given bail if they have committed or allegedly committed that offence.

Bridget Fitzgerald: Dr Bricknell says there’s been a stark increase in the number of Aboriginal and Torres Strait Islander people held on remand.

Samantha Bricknell: If you look back at say 2018, 2019, around a third of Indigenous prisoners were on remand. That’s gone up to 44, 45 per cent in that short time frame up to 2025.

Bridget Fitzgerald: Dr Bricknell says the study didn’t look at whether more punitive bail laws led to a reduction in crime, but she says there’s strong evidence that people who have been incarcerated are more likely to re-offend. Nurita Waits says community support in mental health, education, drug and alcohol services and housing need to be prioritised to keep Aboriginal and Torres Strait Islander people out of the justice system in the first place.

Nerita Waight: Making sure that we understand that community safety is achieved by strengthening communities, not locking them away.

Bridget Fitzgerald: The Federal Government has previously acknowledged the over-representation of First Nations people in prisons is unacceptable and says it continues to invest in justice reinvestment programs. That report from Bridget Fitzgerald.