‘It’s a gendered Issue, 100 per cent’: How tough bail laws entrench gender and racial inequality and social disadvantage

Abstract

Women’s rates of remand, or pre-trial detention, have grown dramatically in Australia and the rates at which Aboriginal and Torres Strait Islander women are incarcerated without conviction are particularly high. However, there is little research examining bail and remand practices and their relationship to social inequalities. This article presents findings from research on the drivers behind women’s increasing rates of custodial remand in Victoria—a jurisdiction that has significantly restricted access to bail through legislative reforms. Drawing on data derived from interviews with criminal defence and duty lawyers, we outline how bail and remand practices systematically disadvantage women experiencing housing insecurity and domestic and family violence (DFV), increasing their risk of becoming trapped in longer-term cycles of incarceration. Our analysis reinforces the need to move away from ‘tough on crime’ approaches to bail. It also highlights unintended consequences of DFV reforms, including further marginalising and punishing criminalised women who are victim-survivors.