Aboriginal people facing criminal charges are much more likely to be refused bail by police than non-Aboriginal defendants in similar cases, according to a major new study of more than 500,000 bail decisions made in New South Wales between 2015 and 2019.
The NSW Bureau of Crime Statistics and Research (Bocsar) found that Aboriginal defendants are 20.4% more likely to be refused bail by police than non-Aboriginal defendants.
The study found that adult Aboriginal defendants are more likely to have bail refused by the police than adult non-Aboriginal defendants, and Aboriginal male defendants and those aged between 35 and 44 years are more likely to be bail refused by both the police and the courts.
Bocsar said the finding that Aboriginal people appeared to receive less favourable police bail decisions warranted further investigation.
“Among people on remand, 25% of adults and 45% of young people are Aboriginal,” Bocsar executive director Jackie Fitzgerald said. “This study confirms that bail decisions are overwhelmingly based on legal factors related to offending. However, it remains possible that Aboriginal people are disadvantaged in police bail decisions and that this is contributing to their over-representation in custody.
“A new study is planned to determine definitively whether the Aboriginal bail result reported here is due to bias or a factor not controlled for in this research.”
The NSW Aboriginal legal service said the study shows there is “systemic racism within NSW police”.
“The data released today proves what we have always known: systemic racism within NSW Police means Aboriginal people are being locked up based on their Aboriginality,” Sarah Crellin, Principal Solicitor (Crime Practice) at the ALS, said.
“Given the trauma that Aboriginal people and their families suffer when in prison, and the unacceptably high number of Aboriginal deaths in custody, it should be an urgent priority for the NSW government to reduce the number of Aboriginal people in our state’s prisons.
“We look forward to learning how they plan to do this, particularly with the 30th anniversary of the Royal Commission into Aboriginal Deaths in Custody coming up in April,” Crellin said.
The ALS is calling on NSW parliament to review bail laws and training provided to NSW Police.
“Police must be accountable for answering why they are choosing not to give bail to Aboriginal people. We also need a separate, purpose-built Bail Act for young people that recognises their unique circumstances,” Crellin said.
In a statement, NSW Police said it “rejects the assertion that a deliberate bias exists” against Aboriginal people when determining bail.
”Decisions on whether to release a person who has been charged with a criminal offence back into the community or deprive that person of their freedom are not taken lightly. The safety of the community and protection of victims of crime are at the forefront of these decisions. Extensive training has been provided to officers to ensure an understanding of the Bail Act, which contains a simple and unequivocal test for bail determinations.
"Factors including the seriousness of an offence, admissions to an offence and/or criminal history, would determine someone – regardless of their ethnic background – more likely to be refused bail than granted it,” the NSW Police statement said.
Bocsar found that police are most likely to refuse bail for defendants who have more concurrent offences, more prior offences or are charged with domestic violence related offences.
It found that NSW police refuse bail in 13.8% of cases for all adults and in 22.7% of cases for juveniles.
The Boscar study also found that police refusal of bail also appears to have a flow-on effect when matters reach court. Among defendants who have already been denied bail by the police, the courts refuse bail to 45.3% of adults and 39.6% of juveniles.
The study also found wide variation in bail decisions across different magistrates and police jurisdictions, even after adjusting for other relevant factors.
The NSW police minister David Elliot has been sought for comment.
