Abstract
In March 2025 Victoria’s Allan Labor government introduced sweeping reforms to the Bail Act 1977 (Vic), which pose a disproportionate risk to both the lives and liberties of First Nations women. This article adapts Kimberlé Crenshaw’s intersectional lens to consider the effect of the bail reform on First Nations women through the intersecting points of disadvantage of race, gender, and colonialism. This analysis concludes that considerations of First Nations women as a vulnerable population were absent from the reforms, and so have reduced this population to biological beings with no legal worth. This may ultimately prove to be lethal.
On Wednesday 12 March 2025, the Allan Labor government in Victoria, Australia, introduced bail reforms that heralded the next step in a tough-on-crime approach to criminal justice. 1 The tests contained in the government’s proposed reforms have been labelled, in a somewhat heavy-handed gesture by the government, as the ‘Tough Bail Bill’, being ‘extremely hard to pass’, and will ‘jolt the system’ as we currently know it. 2 Victoria has, at least in recent history, embraced a ‘tough on crime’ approach to bail which has typically had a disproportionate effect on vulnerable populations. 3 For example, in August 2024, the Victorian government introduced laws targeting ‘thuggery and bad behaviour’, providing Victoria Police with ‘more power’ to limit criminal association. 4 In the wake of James Gargasoulas’ Bourke Street mass murder, 5 the previous Victorian regime (the Andrews Labor government) was similarly committed to ‘strengthened legislation, [and] a presumption against bail and parole for certain offenders’. 6 Regardless, or perhaps in a conscious continuation of this trend, the Allan government has declared, with a confounding sense of grandeur, that the ‘Tough Bail Laws … will make Victoria’s bail laws the toughest in Australia’. 7
These reforms pose a threat to a range of disadvantaged populations, but the risk they pose to the lives and deaths of First Nations women in the context of over-incarceration is extraordinary. The over-representation of First Nations women incarcerated on remand, before they are even convicted, is overwhelming. First Nations women are almost 16 times more likely than non-Indigenous women to be held on remand, a number also disproportionately higher than First Nations men. 8 Significantly, and in light of the Allan government’s emphasis on youth offenders, First Nations children and young people are incarcerated at a rate 26 times greater than non-Indigenous young people; the gender breakdown of this data is not clear, but it is worth noting in the context of the focus of the 2025 bail reform. 9
While this article acknowledges multiple populations exist to whom these bail laws pose a threat, the focus here is on First Nations women as a population who represent a specific, and unique, intersectionality in the context of the Victorian criminal justice system (CJS). Further, the population of First Nations women in the CJS has typically been affected disproportionately by the development of bail laws in Victoria and so these new reforms warrant serious consideration.
This article builds on Kimberlé Crenshaw’s two-point intersectional lens, first introduced, at least formally, in 1989, 10 in which Crenshaw identified the ‘collision’, or compounding, of race and gender as points of disadvantage. This compounding of two apparently distinct points does not describe a circumstance by which two categories of disadvantage are experienced simultaneously. Rather, this compounding represents the amalgamation of two points of disadvantage which collide to form a new, distinct, and unique form of disadvantage or discrimination. 11 This article therefore adds ‘colonialism’ as a third collision point, with the aim of establishing a ‘three-point’ lens specific to First Nations women. 12 This is not to suggest that First Nations women experience only three points of compounded disadvantage. However, as Hilde Tubex and Dorinda Cox argue, the ongoing phenomenon of over-incarceration of First Nations women should not, and cannot truly, be understood within Western frameworks which render invisible the ‘considerable role of colonialism’ in the crisis. 13 In considering how legal theory might challenge legal and political developments like bail reform, First Nations women’s location and experiences within a colonial CJS is both ‘contextually and practically important’. 14
The compounding intersection of race and gender is well established in the work of scholars like Crenshaw, 15 Sumi Cho, 16 Elena Marchetti 17 and, arguably, scholars such as Goenpul academic Aileen Moreton-Robinson. 18 These are but a very few of the scholars undertaking important intersectional work at the nexus of race and gender. In the context of the Australian CJS, the intersection of race and gender has informed a range of practical interventions, including the work of abolitionist organisations 19 and social media campaigns. 20 Theoretically, intersectionality has provided some deeper understanding of legal developments around ‘provocation, self-defence, and the purpose and effects of punishment’. 21 However, the absence of ‘colonialism’ from this intersectional equation is marked, and has significant consequences in its potential to ‘theoretically erase’ the carceral experience of a population, many of whom cannot be accounted for even at the intersection of race and gender. 22 The very use of race and its ‘fixity’ as a colonial tool of power and control in settler-colonial jurisdictions like Australia means that colonialism must be accounted for in any intersectional lens seeking to reimagine a crisis like that facing incarcerated First Nations women in Australia. 23
This three-point intersectionality, 24 discussed in more detail later in the article, provides an opportunity to conduct analysis on the likely effects of the Allan government’s bail reform on First Nations women involved in the Victorian CJS, ultimately showing that not only are the reforms a dangerous, ‘knee-jerk’ legislative reaction, but that they are, or will be, deadly.
Veronica Nelson and bail reform
Veronica Marie Nelson was a 37-year-old Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman living in Victoria when she died on remand at the Dame Phyllis Frost Centre (DPFC) on 2 January 2020. She had been remanded in custody after being denied bail for minor, non-violent shoplifting offences, breach of bail offences, and a Community Corrections Order breach. 25 An autopsy found that she weighed approximately 33 kg at the time of her death, and that her height was approximately 160 cm, placing her in the ‘grossly underweight’ and malnourished body mass index category; the autopsy report also indicated that Nelson had ‘the appearance of skin being just over bone’. 26 She also had a history of opioid dependence and was in a state of withdrawal when she arrived at the DPFC medical centre. 27
While the cause of Nelson’s death was ultimately found to be ‘complications of withdrawal from chronic opiate use and Wilkie Syndrome in the setting of malnutrition’, 28 Coroner Simon McGregor also found that her death ‘was preventable’. 29 Indeed, for the purpose of this article, the death was preventable because Nelson was incarcerated at the time of her death, and she arguably should not have been. For this reason, Nelson’s case is utilised as a regrettably brief case study of how important bail laws are to the lives, and deaths, of First Nations women and how any reform to bail must be considered at the intersection of race, gender, and colonialism. 30 Nelson’s story, and the continuing fight for legislative change by her family and her community provides space and opportunity to interrogate what might be termed ‘patriarchal colonial whiteness’ in a legal setting of deep colonialism. 31 This reframing of the setting of Nelson’s death highlights the ‘invisible unnamed organizing principle that surreptitiously shapes social relations’, 32 including the specific social contract in which we engage when we participate in law and order, or in our reliance on systems and structures of criminal justice. 33 In the wake of Nelson’s death, in response to the calls for change from both her family and the broader community, but perhaps most pertinently in light of Coroner McGregor’s damning coronial inquiry, the Andrews government made a concessional backflip from the ‘tough on crime’ policies that dominated criminal justice, making promises in the Victorian media of bail reform. 34 However, it is what came next – the current iteration of bail reform reflecting Allan’s legislative acrobatics – which is of concern to the remainder of this article.
Lethal reforms
For First Nations women in the carceral system, like Veronica Nelson but also like Tanya Day in Victoria, and women in other Australian jurisdictions like Ms Dhu, 35 or Nita Blankett, 36 both of whom died in custody in Western Australia, themes of domination are informed by racial, gendered, and colonial oppressions that are hidden in a ‘deep colonial’ system, a system which looks decolonial, but is in fact so deeply colonial as to be undetectable. 37 Yawuru scholar Mick Dodson points to the ‘sterile symbolism’ of acts of law which, on the surface, promote equality and advance First Nations rights. 38 Other First Nations scholars, like Tanganekald, and Meintangk academic Irene Watson, argue in the context of the Mabo (No 2) decision of the High Court of Australia, 39 that these apparently progressive developments are illusory, and come not from a place of law, but rather of power of the muldarbi. 40 The confluence of this ‘sterile symbolism’, and the illusory nature of progression, paint a dire, yet undeniable, picture of the intersectional impact of race, gender and colonialism. In particular, for the purpose of this article, it is the sterility of the political messaging of reform, the illusion of change for First Nations women in the carceral system and, even more specifically, First Nations women’s experience of pre-trial incarceration, that is of concern here for its reflection of the argument that the carceral system is operating in exactly the way it was intended, while presenting a very different face to the public. 41
The report of the Inquest into Nelson’s death was published in January 2023 and, in a departure from the generally politically neutral positions of previous coronial inquests, 42 Coroner McGregor ‘centres’ Nelson as a First Nations woman, and makes it clear that her race, and her death ‘in a prison built on the lands of the Wurundjeri and Bunurong people’, 43 was central to his inquiry. Further, McGregor’s findings against the DPFC staff and, indeed, the government itself, ‘are unequivocal, and they are damning’. 44 It is baffling, then, that the Allan government’s reforms are inconsistent with Coroner McGregor’s findings. Indeed, the reforms are inconsistent with recommendations from both Coroner McGregor and the Royal Commission into Aboriginal Deaths In Custody – that incarceration be used only as a ‘last resort’. Coroner McGregor states that the bail laws as they were at the time of Nelson’s death ‘discriminate[d] against Aboriginal people, [and] are incompatible with the Victorian Human Rights Charter’. 45
The Andrews Labor government had taken some steps in the years following Nelson’s death to ‘abolish the ‘“double uplift” provision’, including the reverse-onus test that Nelson was unable to satisfy. These reverse onus provisions of the Bail Act 1977 (Vic), 46 also referred to as the ‘compelling reasons’ test, rested on a presumption against bail unless the bail applicant could ‘show compelling reasons’ as to why their remand was inappropriate or unjust. This does, of course, reverse the usual presumption, and can be a difficult test to satisfy, particularly for vulnerable populations like women, victims of family violence, young people, unhoused people, or First Nations people. The Andrews government also committed to vary the strength of the test for bail depending on the offence. 47
However, the Allan government’s reform commits to ‘target repeat offenders of the worst crimes, [under which] bail can’t be granted to someone who is accused of committing a serious offence if they are already on bail for a similarly serious offence’. 48 While the Allan government indicates that ‘serious offences’ will include ‘serious … weapon offences’ and ‘non-aggravated home invasion’, 49 the practical effect of these examples and the scope and boundaries around what constitutes a ‘seriousness’ in determining the parameters of a ‘serious crime’ are troubling, particularly in the context of a racialised, gendered, colonial CJS which actively operates to ‘Other’ a specific population of people as ‘convenient criminals’. 50
In his assessment of Nelson’s unique discrimination, Coroner McGregor made the following statement: ‘Discrimination’ is defined in s3 of the Charter … and the attributes in s6 of the [Equal Opportunity Act 2010)]. Veronica possessed several attributes protected by the EO Act and the Charter; direct and indirect discrimination because of protected attributes is prohibited. The most relevant attributes to this inquest are ‘sex’, given Veronica was a woman, ‘race’, given that she was Aboriginal, and ‘disability’, because opioid addiction falls within the EO Act definition of disability.
51
Coroner McGregor’s articulation of race and Aboriginality is compelling. It seems that the Coroner is attempting to account for colonialism in Nelson’s intersectionality, but this potential conflation is, at least theoretically and likely in practice, dangerous. The three-point intersectional lens applied here, and proposed previously, identifies race, gender, and colonialism as distinct points of intersection. When defined, for example, in the context of Crenshaw’s intersectionality, ‘race’ appears more as a point of identity. However, ‘colonialism’ refers to a contextual location in which the systems and structures of justice are situated. 52 Where Coroner McGregor states ‘… “race”, given that she was Aboriginal’, he is not quite conflating race and colonialism, but it does appear he is attempting to frame colonialism as the context for Nelson’s discrimination. Coroner McGregor has, interestingly, added ‘disability’ almost as a point of intersection of its own; it is certainly not the intention of this article to exclude such a point. Indeed, despite her focus on race and gender, Crenshaw left the ‘theoretical door’ open to ‘the connections between all the “isms”’; 53 it is only that this article focuses on the three-point intersection of race, gender and colonialism as has recently been proposed. 54
Coroner McGregor deals with the intersectional effects of Nelson’s location within colonial systems and structures separately. In previous work, I have identified that these include references to the ‘continuing consequences of colonisation of Australia and its Indigenous peoples, which was underscored by assumptions about the innate superiority of non-Aboriginal people over Aboriginal people’, 55 and highlighting a statement given in evidence that the CJS ‘is one of the most significant sites of ongoing … colonialism in Australia’. 56
The addition of ‘colonialism’ to Crenshaw’s two-point lens, 57 which brings into existence a three-point intersectionality unique to First Nations women in the CJS, is supported by what Coroner McGregor identifies as the ‘unbalanced power dynamics [which] replicates the long history of dispossession and colonisation experienced by First Nations people [where] [i]n short, the situation is likely to be experienced by an Aboriginal and/or Torres Strait Islander person as culturally unsafe’. 58 This supports a three-point intersectional lens because, while First Nations women in the CJS are undoubtedly disadvantaged or discriminated against by points of race and gender, their situation in a colonial power structure means that they experience a triple intersection that is unique to them.
Three-point intersectionality
In his report into the death of Veronica Nelson, specifically in his considerations of the ‘circumstances’ of her death, the Coroner called for a legislative response to bail reform in an effort to address what he perceived as a ‘complete and unmitigated disaster’, 59 which ‘disproportionately affected’ First Nations women. 60 This raises a crucial question: Why do tough bail laws disproportionately affect First Nations women? I propose to answer this question with reference to a three-point intersectional lens. 61
‘Intersectionality’ as a theoretical lens was introduced by Kimberlé Crenshaw in the late 1980s to describe the experience of women whose discrimination is compounded at the intersection of two distinct points of disadvantage. As stated at the outset of this article, for Crenshaw these are generally ‘race’ and ‘gender’. This section will consider race, gender, and colonialism in turn, 62 although with an awareness of space constraints. First, I will consider how ‘watershed’ legal moments, such as Mabo (No 2), might racially impact First Nations people more broadly. I will then turn to the first intersection, to consider how First Nations women are impacted. Finally, I will consider colonialism as a third compounding factor, 63 to determine how the addition of an element which has typically been treated as contextual, rather than causal, changes the way we look at First Nations women’s experiences of a racialised, gendered, colonially-informed instrument of law.
Race
There are many examples in the Australian common law of supposedly ‘watershed’ cases dealing with race as a discriminatory factor for First Nations people. For example, in 1992, the High Court of Australia decided the case of Mabo (No 2), 64 in which Meriam man Eddie Mabo was successful in his claim of native title and in which the Court described the subversion of the foundation of proprietary rights. 65 The case is credited with overturning the doctrine of terra nullius, the principle upon which Australia’s settlement/invasion in 1788 was founded. However, many scholars, including Irene Watson and Birri-Gubba and Yugambeh academic Nicole Watson, are critical of the decision.
In her article, Buried Alive, which includes the famous parable of the frog, Irene Watson describes her community ‘digging itself from the rubble of the aftermath and the impact of Mabo (No 2), and the Native Title legislation’. 66 For Irene Watson, the Australian High Court was given the opportunity to consider the power of the colonial structures in their decision on Mabo, and yet instead this ‘watershed’ moment perpetuated control of one race by another. Similarly, Nicole Watson argues that Mabo is Australia’s Brown v Board of Education, an apparently revolutionary case from the United States which declared racial segregation was unconstitutional. There is some argument from Nicole Watson, taking a critical race theory position, that both cases are little more than ‘sterile symbolism’, 67 having no true effect on the impact of race on First Nations people in the legal system.
It is not suggested here that the Allan government’s 2025 bail reform is in any way promising benefit, or even symbolic concession to First Nations women. However, I argue that it is the very promise of community safety that takes the form of ‘sterile symbolism’ as the newly reformed bail laws, by the breadth of its net, capture people from First Nations communities. The ‘illusory’ promise of ‘community safety’ is confounding. 68 How can the community be considered safe when an entire population of that community is at risk of over-incarceration, excessive pre-trial incarceration, and possibly death in a space that has been described as ‘necropolitical’ – that is, concerned with the governance of death? 69 This raises the issue of Achille Mbembe’s theory of homo sacer, ‘bare life’, in which a person is stripped of all legal good, and reduced to a biological existence beyond being. 70 In Coroner McGregor’s report, he describes a situation lacking in cultural competency, or ‘culturally-specific care or support’. 71 Because arguably, as a First Nations woman Nelson, and all First Nations women in a custodial setting, are stripped to an unmanageable biological being, 72 managed by the state apparatus of the necropolitical carceral space. 73
Gender
Introducing ‘gender’ as the first point of disadvantage of this intersection with race, it becomes apparent that, where feminist legal theory is applied, First Nations women are in a unique position. This population, at the intersection of race and gender, are disproportionately affected by bail reform. It is no secret that racialised people are at higher risk of misidentification in assaults, 74 and indeed misidentification of perpetrators in family violence orders disproportionately affects First Nations women in Australia. 75 So if, for example, a First Nations woman is misidentified as perpetrating an assault for the purposes of a family violence order, and she is subsequently charged with a similar offence, is she likely to be denied bail under the new reforms? If she is prohibited from entering the family home, where her children reside, under the conditions of a family violence order, and she has the intention of ‘stealing’ items which may belong to her, is she likely to be charged with non-aggravated home invasion and, therefore, denied bail? 76 If she is denied bail, are her children more likely to be removed from her care permanently – another issue that is highly racially charged? 77
In the context of the criminalising effects of child removal, 78 for example, this consequence is dangerous and, potentially, lethal. Similarly, First Nations women who may be mothers raise the concept of ‘motherwork’, 79 which ‘encompasses the social context of caregiving … in the community’, 80 outside of traditional notions of the Western role of motherhood. The incarceration of First Nations women interrupts these patterns of motherwork and cause ‘gaps in the structures of communities’ which can exacerbate the criminalisation of the woman herself and those in her care and community and increase the occurrence of incarceration, including pre-trial incarceration. 81 These are but two examples of how the two-point intersectionality of First Nations women in the CJS are disproportionately or, at least, differently affected by a CJS which includes pre-trial detention.
Colonialism
Having established the intersection of race and gender for First Nations women in the context of the CJS, I now adopt my own previous work in introducing ‘colonialism’ to complete a three-point intersectional lens. 82 The notion of ‘deep coloniality’, which I have touched on briefly throughout this article, reflects the colonially enforced ‘erasure’ of First Nations women. 83 A deep colonial system is one in which the colonial attitudes and practices of its structures are so entrenched that they are effectively invisible. 84 In bringing colonialism into the three-point lens, it is possible to situate the racialised, gendered individual within a criminal justice structure of colonialism. 85 The carceral system is fundamentally colonial.86 The concepts of surveillance of the Other, 87 and the notion of policing and of bail decision-making, are each active elements of the CJS as a colonial structure. A First Nations woman is excluded from the identity of ‘woman’ because she is racialised; she is excluded from categories of ‘race’ because she is a woman. This is consistent with Crenshaw’s iteration of intersectionality. However, the First Nations woman is also excluded from ‘colonial social infrastructure’, including the CJS and legal structures, as an operation of colonialism. 88
For post-colonial theorist Edward Said, the colonised population is the ‘subject race, dominated by a race that knows them and what is good for them better than they could possibly know themselves’. 89 Here, the Allan government is presuming to ‘know’ about a series of minority populations as either ‘criminals’ or, perhaps even worse, as being so low in significance they have no ‘legal good’ to speak of, and, therefore, need not be considered in law reform by nature of their reduction to bare, biological, life. 90 This idea of bare life, or homo sacer, introduced by Giorgio Agamben in his theory of necropolitics, is regrettably outside the scope of this article; however, the reduction of First Nations women to homo sacer in the formulation of legislative reform does warrant future research.
Conclusion
This article has applied a three-point intersectional lens comprised of race, gender and colonialism to shed light on the potentially deadly consequences of bail reform in Victoria. 91 Ultimately, First Nations women were not considered in the formulation of the Allan government’s reforms, likely a result of their situation at the intersection of race, gender, and colonialism, stripping them of legal good while simultaneously catching them up in this net of carcerality. It is therefore imperative that, in formulating bail laws, the Victorian government pay close attention to the unique, and specific, three-point intersectional experiences of First Nations women whose societies, and communities, are under attack by the Western definition of ‘progress’. It is not insignificant that the state government is itself a colonial structure. However, the positionality of a body as colonial, whether an individual or a structural body, does not exclude work in support of de- or anti-coloniality. I am not a First Nations woman. I was born and raised and have had the profound privilege of living most of my life on the beautiful lands of the Bunurong people. But I am motivated by injustice, and am motivated by Tony Birch’s sentiment that carrying the burden of the memory of colonial violence cannot fall at the feet of Australia’s First Nations communities. 92 It is possible for the Victorian government, regardless of which political party forms that government, to work within a three-point intersectional framework. In failing to do so, this population of First Nations women are facing the active ‘destruction’ of their lives quite literally, by the reformulation of bail laws.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
