Introduction by Croakey: Cape York Indigenous leader Noel Pearson delivered a keynote address last weekend at the Garma Festival, the annual four-day celebration of Yolngu art, culture, dance, ceremony and song, and meeting point for the clans and families of north-east Arnhem Land.
Among other issues, he spoke about the painful impact on Aboriginal and Torres Strait Islander children and families from punitive child protection, youth justice and adult incarceration systems, declaring: “The inability of governments to deliver the reforms our people need is no longer only a moral failure but a civilisational one.”
Reform of bail laws and practices is an important area for urgent attention, according to Emeritus Professor Eileen Baldry, Dr Grace FitzGerald and Associate Professor Thileepan Naren, who in the article below scrutinise the shift towards reducing peoples’ access to bail and the consequences for their health and wellbeing.
“Limiting access to bail doesn’t make our streets safer; it makes people sicker,” they write, calling for public health considerations to shape reforms.
Eileen Baldry, Grace FitzGerald and Thileepan Naren write:
In 2025 alone, Victoria, New South Wales, and the Northern Territory further limited access to bail, supposedly to reduce youth crime rates and domestic violence.
To be remanded in custody is to be removed from the community after being charged with an offence but before being found guilty.
To be bailed is to be allowed to remain in the community while awaiting trial and sentencing.
The “presumption of bail” asserts that a person charged with an offence is presumed innocent until proven guilty, and entitled to remain in the community awaiting trial unless there are compelling reasons for the refusal of bail.
When Australia first codified the ‘presumption of bail’ in the 1970s, remand was used if an individual posed a serious threat to the public, or was at risk of fleeing the state.
Since the 1970s, tough-on-crime politics has influenced a series of bail reforms in several jurisdictions, and common law presumptions have been eroded through the expansion of ‘reverse onus’ provisions.
Where once the prosecution needed to demonstrate the need for remand, it is increasingly the responsibility of an accused person to convince a court that they should be granted bail.
In this context, the adult remand population has tripled since 2005, swelling to over 19,850 in June 2025.
In 1980, people on remand comprised only 10 percent of the census prison population but in 2025, 40 percent of prisoners were unsentenced. This census figure is a static count of prisoners on any one day and does not reflect the broader impact upon the thousands of individuals flowing in and out on remand for short periods.
The flow numbers over a year are almost double the census numbers, reflecting ‘churn’ through the prison system. In NSW, for example, 20,338 (88 percent) people received into prison in 2024 were unsentenced.
The situation for children is even worse: 72 percent of children in detention are held on remand, most not receiving a custodial sentence at final hearing.
Inequity and injustice
First Nations people are eleven times more likely to be in custody on remand. Nearly 80 percent of First Nations children in custody in 2025 were unsentenced, and 98 percent of these children had a previous episode of unsentenced detention at some point during the year.
Remand is not about what you’ve done wrong, it’s about how vulnerable you are.
A social determinants of justice paradigm illustrates why some groups are over-represented in criminal justice systems.
The social determinants of justice include poverty and inequitable access to resources, early life exposure to violence, systemic racism and poor health.
For many, pathways into custody are shaped from an early age by these determinants, evident in the failure of the housing, health, education and community service systems to support children, young people, and their families.
Consequently, people in prisons are amongst the most disadvantaged in society, experiencing higher rates of poverty, unstable housing, mental and physical ill health, violence and disability than the general population.
These social determinants of justice work against people accused of an offence in decisions about bail and remand.
For example, a person accused of a low-risk crime might be remanded in custody because there is no safe, stable accommodation to which they can be released, or a young person may be remanded if there is no responsible adult to whose supervision they can be bailed.
Women are more likely than men to be held on remand rather than granted bail, with as many as 55 percent of women in NSW prisons in 2025 being on remand. These women aren’t necessarily considered to pose untenable risks to the community, but their exposure to family violence, homelessness and poverty reduces their likelihood of being granted bail.
In NSW, 52 percent of women on remand do not ultimately receive a custodial sentence.
Policies that reduce the likelihood of bail are usually reactions to media discourse that increases political pressures, rather than responses to evidence regarding promotion of community safety.
Significant drivers of incarceration, including domestic violence and substance use, are considered to be global public health issues that cannot be resolved by imprisonment.
In fact, the increasing use of remand has very limited impacts on crime rates. International jurisdictions that have trialled bail reform have demonstrated that less restrictive bail policies are not associated with increased crime. Incarceration is in itself associated with higher rates of recidivism.
Bad for health
One-third of the 90 people who died in custody in Australia between 2024-2025 were unsentenced prisoners. Those who survive custodial contact experience a decline in their health as a result of their imprisonment, and there are unacceptable rates of death in the first weeks after release from prison.
Even short periods of time in custody can disrupt the protective factors in an individual’s life, such as connection to community and enduring relationships with local health services, disability, or housing support.
A period on remand may entail access to an initial health screening assessment, but most remanded individuals are ineligible to receive ongoing treatments. People remanded in custody do not have access to transition or post-release support, and risk being evicted from their housing, losing their employment, or having children absorbed into the care of protective services.
Those incarcerated in their youth experience poor physical and mental health across the life course.
Young people exposed to the custodial system are more than four times as likely as their peers to die prematurely of preventable causes. This burden of disease is driven by traumas experienced both pre-detention and while confined, erosion of mental health, disruption to social networks, and post-incarceration stigma.
Remand disrupts schooling, employment, and living arrangements for children and young people, who are often ineligible to participate in educational, vocational, or rehabilitative programs while on remand.
Bail is recognised as a means to reduce harms associated with incarceration. Both the 1987 Royal Commission into Aboriginal Deaths in Custody and the 2023 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability cited bail as a mechanism to prevent deaths and negative outcomes in custody.
Alternatives to custody
Our response to crime should consider the social determinants of incarceration and strive to increase community safety on the whole. Incarcerating an adult cost $440 per day in 2024-25.
Keeping a child in custody costs an astounding $3,320 per day or $1,211,147 per year. These funds could be invested in proven early, preventive, pro-social, and public health initiatives that prevent incarceration.
Strategies with evidence for addressing the social determinants of incarceration include therapeutic jurisprudence, First Nations-led community projects, and grassroots initiatives.
Diversionary programs such as drug courts and mental health courts focus on solutions to the drivers of offending. A powerful example of diversion is the Sydney-based ‘From Now’ project which has a success rate of 70 percent, assisting to divert justice-involved women and their children to gain and maintain housing with support.
The Queensland Decarceration project supports women at risk of being remanded in custody with the support they need to receiving and/or maintaining bail, ranging from accommodation to assistance applying for Centrelink benefits.
Apply public health principles
Bail practice is a focus of law reform in Australia and internationally.
Community legal services and advocates propose legislative reform to better balance community safety and harms to individuals and communities who are disproportionately impacted by remand.
We suggest that public health considerations in any review of bail laws might include:
- Acknowledgement of the social determinants of incarceration.
- Review of available evidence relating to the public health implications of remand for both individuals and communities.
- Increased investment in diversion from remand support programs, including culturally safe and community-led programs.
- Expansion of social and health supports to remand populations to ameliorate health risks accumulating as a result of that period of incarceration.
- Provision for methodologically rigorous evaluations of the public health impacts of changes to bail laws.
Limiting access to bail doesn’t make our streets safer; it makes people sicker.
Reducing the risk of offending behaviour requires national strategies and intergovernmental agreements that address the social determinants of incarceration.
About the authors
Eileen Baldry AO is Professor Emerita of Criminology at UNSW.
Dr Grace FitzGerald is an addiction medicine specialist at Western Health in Melbourne.
Associate Professor Thileepan Naren is also an addiction medicine specialist at Western Health and at cohealth i, as well as Adjunct Clinical Associate Professor at the Monash Addiction Research Centre at Monash University, Adjunct Associate Professor at the National Drug Research Institute, Curtin University, and Honorary Senior Fellow, Burnet Institute.
See Croakey’s archive of articles on justice and policing
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