Discover more about – and support – the Victorian Aboriginal Legal Service Our Bail Saves Lives campaign here: https://www.vals.org.au/bailsaveslives

Charles Pakana:

In March 2025, the Victorian State government proposed significant changes to the bail laws. Bail laws, which were already recognized as harsh with the introduction of changes in 2018. Now, those laws have led to a massive increase in the number of people held on remand, that is in imprisoned prior to trial or sentencing without bail.

In particular, aboriginal Victorians, notably women and children are bearing much of the brunt with legal and human rights organizations warning that these laws and proposed changes, further changes are leading to record high incarceration rates and being repetitions of past failures. Joining me on the program today to discuss this is Ali Besiroglu, Director of Legal Services at the Victorian Aboriginal Legal Services. Ali, thanks for speaking with me today.

Ali Besiroglu:

Thanks for having me, Charles.

Charles:

Ali, let’s get right to it. Bail laws are being put out there and updated in order to protect Victorians from the criminal element. Isn’t that the case?

Ali:

Well, I think we need a proper understanding, firstly, of what bail laws are supposed to do.

Charles:

Sure.

Ali:

Historically, bail laws have always been to assure the attendance of accused people to court. It was in the ’80s that basically bail laws were used as a mechanism to try and mitigate risk. What we’ve proposed as an organization is exactly that. The only test of bail should be that of risk, and that risk should be borne, not by defense, by the accused person, but that should be borne by prosecution. And really, when we look back at the inquest into the tragic passing of Veronica Nelson, that’s where we are proposing that the bail laws should be taken to, which is from the recommendations that came from that inquest.

Charles:

And that leads us into Poccum’s Law, which we’ll definitely touch on in a short while. But what are some of the changes that are being introduced? And it definitely, just before we get there, it seems that there’s been a move from a presumption of innocence to a presumption of guilt.

Ali:

Correct, correct.

Charles:

That’s how I’m reading it correctly?

Ali:

Yup.

Charles:

Why has that happened?

Ali:

Well, again, we have to understand the historical context. In 2018, bail laws were significantly varied after the tragic Bourke Street incident. And what we did was we introduced a higher standard of tests when it came to bail. So, instead of what we were just talking about, this concept of risk, the onus was shifted onto the applicant or the accused person.

And that person, depending on what source of offending they were engaged in, were either had to show compelling reasons as to why their liberty should be intact or alternatively the highest test of bail, which is exceptional circumstances. And what happened was that that net was cast out so wide that it captured people like Veronica, who were responsible for petty offending and imposed the strictest test of bail to those people.

And as a result of this inquest, we advocated, and it’s not just bails, mind you, a lot of human rights organizations across the board advocated for the bringing back of bail so that it was a much fairer system and certain tests were abolished as a result of that. Now, the introductions, what’s being introduced is basically a step back to where it once was.

Charles:

Why is it impacting so much on Aboriginal women and children? That’s the question that really is begging.

Ali:

Well, we maintain that the changes that were brought in really captured poverty offenses. Again, I think the historical context, realistically, when you look at history, First Nations people in Victoria have historically paid dearly for the crimes of white Australia. So, in 2013, for example, we had the horrendous incident of a murder by Adrian Bayley of Jill Meagher who wasn’t Australian then.

As a result of that incident, there were significant changes that we brought to parole laws. Again, that had a disproportionate impact on Aboriginal people being able to access liberty once they were in custody. And then once they were out on parole, those parole conditions were immediately tightened that people found themselves back in custody and really didn’t even want to apply for parole as a result of those conditions. A disproportionate impact on First Nations people.

Same thing again with a white man, who tragically created a massacre in Bourke Street. Six innocent people gave their lives as a result of that incident. And there were many more injured. And again, the government’s response was to, firstly, there was an inquiry that was done by Justice Coghlan, and it was the recommendations that came from that review, which then resulted again in this disproportionate impact on Aboriginal communities, in particular women and children.

Charles:

So, it seems that whilst it’s not necessarily a knee-jerk reaction on the part of the government because if they’re going into an inquiry about these things, but it seems to be a lack of understanding of the broader impact on the impoverished within our community that these laws and changes to law will have.

Ali:

Exactly. The net becomes cast so wide. Aboriginal people are captured in this system, and it’s in what we say is basically an unintended consequence of these changes. Hence, the reason for why we’re in support of the First Peoples Assembly, for example, with Parliament and Treaty, because the government needs to know what the consequences of its actions are going to be when these laws are reformed.

Charles:

But surely, they must, I mean, the human rights organizations, VALS, other legal organizations, human rights organizations have been advocating this for, god, as long as I’ve been getting media releases really, which is a long time. Someone in government must be listening, or is that just optimism misplaced?

Ali:

I personally think it’s just the consequence of utilitarian approach. Greatest good for the greatest number. We don’t really care about the Aboriginal community, but what we have now is a mechanism to be able to say, “You knew this at the time that it happened.” And what invariably, sadly, and tragically is likely to occur is that more Aboriginal people get locked up. Prisons cannot cope as they couldn’t back in the 2018 reforms and more Aboriginal people will die in custody.

And then, it would be subject to another review at the Coroner’s court. And we will then be coming back to analyzing, what this government did as a result of the changes that have been brought in. The coroner at the last inquest in Veronica Nelson’s inquest labeled the previous reforms as being an unmitigated disaster.

Charles:

I remember reading that. Yeah.

Ali:

An unmitigated disaster. And not only that, but breaching fundamental rights under the Charter of Rights. And yet this government now is proposing to go back to that very same stance. In response then, we have to look at why and how this has happened. So, there’s been, from what we understand, 330 children as released by Victoria Police data were responsible for a significant amount of crimes. Youth.

We didn’t even have a massive impact or a catastrophic incident, which then led to these reforms. Three hundred thirty children were able to shatter what we had worked for for over the last three years in bringing bail back to an equitable system. And mind you, the system wasn’t brought back to what we wanted. We wanted a lot more from this government than what it has changed to.

Charles:

And we’ll definitely get to that because that once again does bring in Poccum’s law, doesn’t it?

Ali:

Yes, yes.

Charles:

But before we get there, and the last question before we get to Poccum’s Law, because that is a focus point of this particular interview, is what are the specific changes that the government is looking to bring in now in 2025, changes that are going to have an even more dire impact on our Black community here in Victoria?

Ali:

So, the major change initially in tranche, one that was brought in, so it was the changes that have been brought in two tranches. So, these offenses against bail is the major one. So, if a person is currently on bail and they commit an offense whilst on bail, once upon a time, as in Veronica’s case, if a further offense occurred, what would happen is it would put you up in the tests that we were talking about.

We call that the double uplift. So, you’d start at unacceptable risk at the first-time offending, and then you’d be uplifted next on the next offending to compelling reasons, and then exceptional circumstances. And it was alleged to Veronica in her time that she was responsible for three shop thefts.

Now, what the court found was that shop stealing wasn’t supposed to be captured in this system. Shop stealing wasn’t one of the factors or wasn’t one of the reasons for why bail reforms had to be introduced. Again, we’re talking about these poverty offenses.

This government in bringing its changes, talks about we are trying to stop violent offending in community. Sure, we’re okay with that. Of course, we don’t want violence in our communities as well, but what we don’t want is for shop stealers or people who engage in, again, poverty offenses to be caught into a system and to be provided the highest test of bail in order for them to be released.

Charles:

So, what happened to Veronica?

Ali:

So, Veronica, she had previously served a sentence. She had gone to the Koori Court and the Koori Court said, “Look, we’ll release you while you engage in the community and we’ll defer your sentence in the circumstances.” She had served enough time to cover her primary offenses, but the Koori Court thought it’s our opportunity to keep her in and then supervise her through that.

Now she, for whatever reason, couldn’t comply or didn’t comply, and a warrant was issued for her arrest. Now, in that warrant also was three allegations of further offending shop steal offenses. Now, I represented Veronica’s mother, aunty Donna Nelson in that inquest.

So, we had a single charge of shop steal, but it covered three incidents basically. But because it was three incidents, she was ultimately put to the highest test of bail, which is she had to show exceptional circumstances. Now, the lawyer that was supposed to represent her, the barrister, spent all of six minutes with her. So, she did her own bail application.

The magistrate, who was mandated to consider her aboriginality, didn’t question her aboriginality at all. So, she was remanded into custody. Thirty-six hours later, she lost her life. And throughout that period, she made 49 intercom calls begging for assistance. And it was a horrific, horrific death. And really showed the state of our prisons in not being able to cope. It showed the failings of our justice system in not being able to accommodate and catching the wrong people. So, there were so many lessons that we learned from that unfortunate incident.

Charles:

And that led to Poccum’s Law?

Ali:

Correct.

Charles:

So, Poccum being Veronica’s nickname, I believe?

Ali:

Correct. Yeah. So, Aunty Donna would explain that when Veronica was in kindergarten, she pointed up at a tree and she would say, “Look, mum, Poccum.” Instead of possum. So, she forever became Aunty Donna’s Poccum.

Charles:

That’s wonderful.

Ali:

Yeah. And an incredibly brave and beautiful human too. Aunty Donna, she’s gone through a hell of a lot including-

Charles:

I can imagine.

Ali:

… just acknowledging how hard these reforms are on Aunty Donna now because it’s her daughter’s legacy.

Charles:

So, tell me about Poccum’s Law, the genesis, apart from Veronica of course, and the main focus points and calls to action for the government.

Ali:

Well, what we want to do, obviously, is to stop this tide of taking a step back into the unmitigated disaster. What we want to do is to bring bail back to what it was intended to be and an assessment of a person’s risk. So, Poccum’s law, what we want to do is to remove these reverse onus presumptions.

Charles:

Yes, yes. I was reading that in the documentation, the reverse onus.

Ali:

And put the court in charge of being able to determine and assess risk.

Charles:

Can’t the court take that responsibility of its own volition?

Ali:

The court’s hands are tied because you impose the toughest standard of bail, and you are saying to the judicial arbitraries, you are going to make a decision by imposing only an exceptional circumstances that a person’s liberty be provided.

Charles:

It’s bloody archaic.

Ali:

It’s punitive, and it’s not what bail was designed to be. We shouldn’t go ahead and start punishing someone before we have determined whether or not they’re guilty or innocent.

Charles:

That’s the, I was going to say irony, but it seems such a soft word in this particular situation, but this presumption of guilt goes against everything that we are brought up to recognize as important in our society. Why is it that it’s the bail laws that are really bearing the brunt of this?

Ali:

I think it’s a highly politicized market, and it’s a great mechanism to grab cheap votes unfortunately. I think that that’s what the state of place. We see bail being chopped and changed and amended routinely to win voters over. And the irony is this, that we’re talking about trying to make communities safer, when empirically, we know that the worst thing you can do to a person, a child in particular, is to put them into prison. Keeping them out of prison is probably the best way to try and get them to not re-offend.

Charles:

It’s hardly a new idea on that at all. Who’s pushing this? I can imagine that VicPol would definitely be behind this in pushing this. It’s going to make their job easier because they’ve got people locked away.

Ali:

Yeah, yeah.

Charles:

You’re not going to go too much into that, are you?

Ali:

Correct, correct. Well, look, there’s a particular cohort of people. I think what happens is media needs to be held responsible, too, mainstream media.

Charles:

Sure.

Ali:

I mean, some of those headlines were horrific that we saw from the Herald Sun, for example, putting pressure on this government. Bail must change now. It all started as a result of a movement from what we understand, a result of a movement from a radio station garnering some community support and votes or community signatures, sorry, which then snowballed. When realistically, what people don’t seem to understand is that using prison as a first resort is really a dangerous method of trying to create a safer community. You don’t. In the long run, you’re actually creating a much more unsafe community than what you had previously started with.

Charles:

So, is that because young people are going in there and they’re learning really the bad ways from the really bad people at a base level?

Ali:

Absolutely. And you walk in with an advanced diploma of theft and come out with a bachelor’s degree in armed robbery. And institutionalization is a very serious, very dangerous predicament for children. If children don’t know any better and feel safety and security and comfort at a youth corrections facility then we have serious problems.

What we’ve always said is that youth offending has always been a care issue, not a criminal law issue. The sledgehammer of the criminal justice system doesn’t work in order to correct youth offending.

So, what we need to do is to invest in programs and supports for these children. Again, we’re dealing with 330 kids apparently across the states. That’s it. Three hundred and thirty children who are responsible for 25% of all the crimes being complained of. Now, that’s a very small cohort of children that we just need to focus our time, effort, energy, and money into rather than putting them into prison and building more prisons.

Charles:

Has the government come back with any rationale as to why it’s not prepared to spend the money on providing legitimate community-led reforms and support? Because it must be terrifically expensive to continue the institutionalization of these young people and other people as well. The balance must be so askew.

Ali:

Absolutely, absolutely. The government introduced a number of programs that they thought would be trialed. One was electronic ankle bracelets, for example, for these kids who were at high risk. Now, at the time that they were proposed to be introduced, these changes occurred as in the bail changes occurred prior to us even trialing that system.

Now, VALS, as an organization was against the whole concept of annual monitoring. However, they didn’t even have time to give it a shot before working out whether or not those 330 children that we’re talking about whether or not their behavior could have been corrected.

So, it was an unplanned situation in terms of the pressure that was mounting from community, because we know that that’s the case right now. For example, Dame Phyllis Frost, right now as we speak, we have women who are being locked in cells, kept in isolation because they don’t have the guard numbers to be able to look after all the women that are currently in prison.

Charles:

Good lord.

Ali:

Now, the government’s response. So, what happened was because prison numbers were coming down, they didn’t employ enough staff or they let go of a bunch of staff because they thought that they wouldn’t need the numbers. But then all of a sudden, we had this irrational response to the call from the community, and all of a sudden, we again start to see prison numbers swell to the point where it’s unmanageable.

Charles:

So, Ali, where to from here, given that the government is seemingly ignoring your call and the call of other organizations, what about the community? Can the community have an impact on this?

Ali:

Absolutely.

Charles:

What should be required?

Ali:

Well, the first thing to do is probably to get on the phone to your local member of Parliament and to express your dissent. Right now, they have this skewed view of what they’ve been seeing from the headlines as to what they think community safety is all about. I think when people actually do a deep dive and start to understand what is being proposed, they will realize that this isn’t a safer method.

So, get on the phone to your local member of parliament and let them know how you think. Also, we love support from the community, get on the socials, get on our social media and follow out a public campaign to try and put pressure on this government to take a step back. We are also advocating for a safer community. Of course, we want a safer community, but we want a safer community where people are not locked away and we are actually addressing the root cause of why it is that they’ve entered the criminal justice system to begin with.

Charles:

And just to put it in perspective before I let you go, I will make a call out to all our listeners who may be like me when you were young and in school, used to rail at the thought of people being uprooted from their homes in England and transported across to Australia for shoplifting a loaf of bread to feed their family. We’re going back to those days.

We’ll be providing all the socials and media links for Victorian Aboriginal Legal Service on our Victorian Aboriginal News website. So, stay tuned. We will also be continuing this story with other interviews. We’ll be approaching Anthony Carbines, the minister for Police, also to seek his input on this. Ali, thanks so much indeed for your time.

Ali:

Thanks for having me, Charles.