Premier Daniel Andrews has since flagged significant reform to the current bail laws, but generalised reform is not enough. This is particularly evident in light of the Coroner’s comments regarding the gendered and racial effects of Victoria’s bail laws. In drafting reform, lawmakers must account for the specific intersectionality of First Nations women, who are affected by the interaction between the Charter and the Bail Act 1977 (Vic) (‘Bail Act’) in two compounding ways: because they are women, and because they are First Nations women.
The Charter purports to reflect four basic principles: freedom, respect, equality, and dignity. The intention of the Victorian Parliament in enshrining these rights was that they be protected and promoted, as far as possible, by all enacted laws. It is in this context that the Coroner delivers his finding that several of the rights that ought to have been afforded to Ms Nelson were violated. In particular, the Coroner noted serious breaches of Ms Nelson’s protection against discrimination, protection against cruel, inhuman or degrading punishment, and her right not to be ‘arbitrarily deprived of life’.
The Bail Act was enacted almost three decades before the Charter enshrined its rights and protections, but it was subjected to sweeping reforms in 2018 in the face of increasing fears for community safety. While the amendments did limit avenues to seek bail for violent offenders, the new provisions actually made it more difficult for all people to access bail. This effect is especially pronounced for First Nations women.
Why did the system fail?
The Coroner’s report indicates that the impact of the Bail Act on the rights of First Nations women are especially pronounced. But while Ms Nelson’s death caused public outrage and impassioned outcry from a wide range of social groups, it did not cause shock. Ms Nelson’s death was not a surprise. Deborah Bird Rose, a decolonial anthropologist, coined the term ‘deep colonialism’ to refer to colonial practices which are so deeply embedded within ‘decolonial’ institutions that they are essentially concealed. It might be argued that laws such as the Bail Act are infused with colonial attitudes toward both race and gender, and that these attitudes are so deeply embedded within the Victorian criminal justice system as to be almost invisible.
Discrimination on the basis of race and gender in the colonial context raises the issue of intersectionality. The term is a popular one; it has become ubiquitous, especially in business, healthcare, and education. However, the concept has been applied only sporadically in Australian criminal justice. Kimberlé Crenshaw employs a car crash analogy to illustrate the concept. For Crenshaw, in her work with Black women in the United States, there are two cars coming from two directions. The first car is Race, the second car is Gender, and the point of their impact is the point at which these two sources of disadvantage compound. For First Nations women in Australia, there is a third car: Colonialism. Disadvantage compounds at the impact of race, gender, and colonialism, creating a unique intersectionality that must be specifically considered and addressed in reforming Victoria’s bail laws.
First Nations women constitute a chronically overlooked population precisely because they exist at the point of impact of three forms of disadvantage and that this is situated within a ‘deep colonial’ justice system. They are excluded from the category of ‘women’ because they are racialized, they are excluded from considerations of ‘race’ because they are women, and they are excluded from the colonial social infrastructure because they are colonised. Lawmakers must pay close attention to the specific intersectional requirements of First Nations women and consciously, actively, bear witness to the colonial practices that naturally underpin their work within colonial structures. This may be by conducting yarning circles with women affected by the criminal justice system. It may involve consultation with First Nations academics in the field of intersectionality. Lessons from outside jurisdictions with similar colonial contexts like Canada or New Zealand may assist here.
It is not enough to simply ‘reform’ the bail laws. We must be curious about how we can address the deep colonial practices embedded within law reform. We must ask how we can better ensure that the rights enshrined in the Charter are truly extended to First Nations women. We must look to intersectionality as a lens to guide us in protecting, fervently and deliberately, the rights and the lives of women like Veronica Nelson.
This content was originally published here.