Understanding the New Victorian Bail Legislation: Adults and First Nations People

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Maya GeorgeSophie ParsonsThe article Understanding the New Victorian Bail Legislation: Adults and First Nations People is written by Sophie Parsons and Maya George of Doogue + George Defence Lawyers.

Sophie is a Partner, In-House Counsel, and an Accredited Criminal Law Specialist at Doogue + George. She regularly appears in bail applications and has a specialised interest in indigenous matters. Before joining the firm, Sophie was a defence advocate and manager in the criminal section of the North Australian Aboriginal Justice Agency (NAAJA) in Darwin for several years.

Maya is a lawyer at Doogue + George with a deep interest in social justice and who has completed a major in human rights as part of her Bachelor of Arts. She has a practical insight into therapeutic approaches to criminal justice and the importance of approaching every case in a compassionate and non-judgmental way. Maya was a Judge’s Associate in the Criminal Division prior to joining Doogue + George.

Parliament That Passed the New Bail LegislationThis detailed guide covers what you need to know about the new Victorian bail legislation and how it affects adults and First Nations people.

Over the last decade, bail laws in Victoria have undergone a series of amendments, often sparked by high-profile offending committed by people on bail.

Most recently, the death of Gunditjmara, Dja Dja Wurrung, Wiradjuri, and Yorta Yorta woman Veronica Nelson in custody, sparked a coronial inquest and calls for further bail reform – this time, to relax Victoria’s strict bail laws and protect vulnerable people.

In 2023, the Victorian Parliament passed the Bail Amendment Bill, which will amend the Bail Act. The amendments will commence no later than 25 March 2024.1

Recent Bail Reforms

The main changes to the Bail Act as a result of the Bail Amendment Bill are amendments to the ‘unacceptable risk’ test, changes to Schedule 2, and the introduction of offences for which bail must not be refused. There are also other significant changes that impact children and First Nations people.

To better understand the most recent amendments, it is helpful to review Victoria’s current bail laws.

Current Bail Laws

When a person applies for bail in Victoria, the offending they are charged with determines which test the Court applies in deciding whether they should be released on bail.

There are currently three different thresholds applied in bail applications.

Exceptional Circumstances

First, an applicant must show exceptional circumstances to justify the granting of bail where the applicant:

  • Is charged with a Schedule 1 offence; or
  • Has a terrorism record; or
  • Poses a risk of committing a terrorism or foreign incursion offence; or
  • Has allegedly committed the offence while they were on bail, summons, or at large in relation to a Schedule 1 or 2 offence, while they were serving a Community Correction Order, or another sentence for a Schedule 1 or 2 offence, or while they were on parole for a Schedule 1 or 2 offence;
  • The applicant is charged with conspiracy to commit, incitement to commit, or attempting to commit such an offence.(s4AA)

Show Compelling Reasons

Secondly, the applicant must show compelling reasons to justify the granting of bail where the applicant:

  • Is charged with a Schedule 2 offence, and the exceptional circumstances test does not apply; or
  • Is charged with an offence that is not in either Schedule 1 or 2, but the applicant has a terrorism record or there is a risk they will commit a terrorism or foreign incursion offence.

Prima Facie Entitlement to Bail

Lastly, where the applicant’s charges do not fit into these categories, there is a presumption that the applicant is entitled to bail.

‘Unacceptable Risk’

The ‘unacceptable risk’ test also applies to all bail applications. Under the current laws, this means that decision makers must refuse bail if they are satisfied that, if released on bail:

  1. There is a risk that the applicant would:
    1. Endanger the safety or welfare of any person; or
    2. Commit an offence while on bail; or
    3. Interfere with a witness or otherwise obstruct the course of justice; or
    4. Fail to answer bail; and
  2. The risk is unacceptable.

Key Changes in the New Legislation

Further Bail Hearings – Amendments to ‘New Facts and Circumstances’

  • Current bail laws – where an accused person has already applied for bail and had bail refused, they can reapply for bail (s18); although if they had a lawyer on that occasion, a Court must not hear such a bail application unless the applicant shows new facts or circumstances have arisen since bail was refused (s18AA).
  • Bail Amendment Bill – removes the requirement for new facts and circumstances where it is the applicant’s first or second bail application since being taken into custody (s115 BA).
  • Practical tip – lawyers can appear in two bail applications in the Magistrates’ Court – provided they are the first two applications made since the applicant went into custody – with ‘new facts and circumstances’ only required to be demonstrated for a third application with legal representation.

Removal of ‘Reverse Onus’ Test and ‘Double Uplift’ for Some Offences

  • Current bail laws – the current Schedule 2 is broad – containing a wide range of offences ranging from manslaughter, making a threat to kill, and sexual offences to committing an indictable offence while on bail for another indictable offence. This means that a person who has stolen a bottle of milk on three separate occasions can be required to meet the incredibly high threshold of ‘exceptional circumstances’ to avoid being remanded in custody, in the following set of circumstances:
    • A person who has never been in trouble with the police before commits an indictable offence. They fall into neither the ‘show compelling reasons’ or ‘exceptional circumstances’ thresholds and have a prima facie right to bail. They are granted bail.
    • While on bail, the person allegedly commits an indictable offence. Now, the ‘show compelling reasons’ test applies.
    • After being granted bail a second time, the person then allegedly commits another offence. They must show ‘exceptional circumstances’ to justify bail.
  • Bail Amendment Bill – two items from Schedule 2 will be removed when the amendments commence:
    • Item 1 – an indictable offence alleged to have been committed by the applicant:
      • While on bail for another indictable offence; or
      • While subject to a summons to answer a charge for another indictable offence; or
      • While at large awaiting trial for another indictable offence; or
      • During the period of a CCO made for another indictable offence; or
      • While otherwise serving a sentence for another indictable offence; or
      • While released under a parole order.
    • Item 30 – an offence against the Bail Act 1977 (s8 BA)
  • Practical tip – Some of the scenarios outlined in item 1 have been preserved through additional amendments to s 4AA; however, removing item 1 from schedule 2 will largely remove the ‘double uplift’ effect of the current legislation (s25 BA).

‘Unacceptable Risk’ Test Refined

  • Current bail laws – the current bail laws allow that a person who is charged with theft of grocery items and has a history of doing so (even where there is no use or threat of violence, or any other danger to any person) – could be refused bail for the sole reason that the Court determines that they pose an unacceptable risk of stealing such items again while on bail.
  • Bail Amendment Bill – narrows the definition of ‘unacceptable risk’ to remove the stand-alone consideration of whether there is a risk that the applicant would commit an offence while on bail. The first consideration, whether there is a risk that the applicant would endanger the safety or welfare of any person, is expanded to a risk that they would ‘endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means’ (s13 BA).
  • Practical tip – the new definition of ‘unacceptable risk’ will operate where the ‘show compelling reasons’ or ‘exceptional circumstances’ tests apply, and also where there is a presumption in favour of bail. In practice, this may have limited effect – it is difficult to identify many offences that can confidently be said to pose no risk to the safety or welfare of any other person.

Offences for Which Bail Must Not Be Refused

  • Bail Amendment Bill – under the new legislation, bail cannot be refused in certain circumstances, namely:
    • where the applicant is accused only of offences from the Summary Offences Act that are not in the newly inserted Schedule 3 of the Bail Act 1977; and
    • the applicant does not have a terrorism record (s8 BA).
      Note – certain exceptions apply where a Court is determining a bail application, where the applicant poses a risk of terrorism or foreign incursion offences, or where bail has previously been revoked on the same offences.
  • Schedule 3 lists 13 offences within the Summary Offences Act 1966 including sexual offences and violent offences (s11 BA).

Repeal of Bail Offences

The Bail Amendment Bill abolishes the offences of:

  • s 30A Bail Act: breaching a conduct condition of bail;
  • s 30B Bail Act: committing an indictable offence on bail; and
  • s 32A Bail Act: infringement notices for an offence against s 30A (s39, 40 BA).

The offence of failure to answer bail will remain (and the option to revoke bail).

Consideration of Time on Remand Exceeding Sentence of Imprisonment

A new paragraph will be inserted before section s3AAA(1)(a) of the Act which means that a bail decision-maker must take into account whether the alleged offender would be given a term of imprisonment if found guilty, and ‘if so that the time the accused would spend remanded in custody if bail is refused would exceed the term of imprisonment’ (s36 BA).

Current Tests and Flow Charts

Sections 4A and 4B of the Bail Act 1977, which set out the ‘show compelling reasons’ and ‘exceptional circumstances’ tests have not been amended. Case law considering these tests should remain applicable, taking into account other amendments to the Bail Act 1977.

Updated flow charts, which will replace those currently contained in the Bail Act 1977, guide practitioners to the correct test.

Changing the Language of the Bail Act

The Bail Amendment Bill also makes changes to the language of the Bail Act. The concept of sureties is replaced by ‘bail guarantees’ and ‘bail guarantors’ (see Part 5, Division 1 BA). The Bill also makes a series of changes to modernise the language of the Bail Act 1977 by removing gendered language. For example, references to ‘he’ or ‘him’ are replaced with gender-neutral language such as ‘the accused’ and ‘the prosecutor’ (see Part 5, Division 2 BA).

Changes to Granting Bail to Aboriginal and/or Torres Strait Islander People

The current bail laws require that when making a decision in relation to a First Nations person, the bail decision maker must take into account any issues that arise due to the applicant’s Aboriginality, including their cultural background (including their ties to extended family or place) and any other relevant issue or obligation.

The recent bail law reforms will expand the considerations for decision makers when the applicant is a First Nations person (ss33 BA), requiring that the decision maker consider the first three issues on the following list — systemic factors, the risk of harm and trauma, and the importance of maintaining and supporting the applicant’s connection to their Aboriginality — whether or not they are provided with any evidence about these factors.

The list includes the following factors:

  • The historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population;
  • The risk of harm and trauma that being in custody poses to Aboriginal people;
  • The importance of maintaining and supporting the development of the person’s connection to culture, kinship, family, Elders, country, and community;
  • Any issues that arise in relation to the person’s history, culture, or circumstances, including the following —
    • The impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss, and family violence;
    • Any experience of out-of-home care, including foster care and residential care;
    • Any experience of social or economic disadvantage, including homelessness and unstable housing;
    • Any ill health the person experiences, including mental illness;
    • Any disability the person has, including physical disability, intellectual disability, and cognitive impairment;
    • Any caring responsibilities the person has, including as the sole or primary parent of an Aboriginal child;
  • Any other relevant cultural issue or obligation (s33 BA).

Decision makers must take these factors into account even in circumstances where the applicant has only irregularly had a connection to their Aboriginality and culture, or where they have only recently discovered they are a First Nations person, and regardless of when the applicant first discloses that they are an Aboriginal person (s33 BA).

Where bail is refused to a First Nations applicant, the decision maker must either orally or in writing identify the matters they had regard to in taking into account the issues listed above (s33 BA). This should provide a level of accountability to ensure that the reforms are having an identifiable impact on how bail applications involving First Nations people are considered.

Changes to Bail Laws for Children

The amendments to the Bail Act affect children as well as adults. Beyond the changes explained above, the Bail Amendment Bill has made some further changes to children’s bail.

These changes have been discussed in our article ‘Understanding The New Victorian Bail Legislation: Children‘.

Tips for Practitioners

  • Sections 4A and 4B of the Bail Act, which set out the ‘show compelling reasons’ and ‘exceptional circumstances’ tests, have not been amended.
  • Case law surrounding these tests should remain applicable, taking into account other amendments to the Bail Act.
  • Updated flow charts, which will replace those currently in the Bail Act, guide practitioners to the correct test.
  • The new laws allow a second legally represented bail application without the requirement to show new facts and circumstances — but new facts and circumstances have a role beyond second applications.

Does the Bail Amendment Bill Go Far Enough?

These most recent amendments have coincided with a notable increase in the prison population in Victoria, particularly with people who are being held on remand (who have not yet pleaded guilty or been found guilty of a crime), with women, with First Nations people and with people charged with multiple low-level offences most disproportionately impacted. Many advocacy groups have raised concerns about the disruptive impact of remand on effective rehabilitation, including organisations like the Human Rights Law Centre and the Victorian Aboriginal Legal Service. The trajectory of amendments has also raised questions about the presumption of innocence, as community safety considerations get prioritised in bail decision-making perhaps at the expense of an accused’s person’s fundamental legal rights.

Although the amendments have been welcomed, there are many legal organisations who are advocating for further and more substantial changes including:

  • The enactment of ‘Poccum’s Law’ — called for by Veronica Nelson’s loved ones — which seeks to address systemic inequalities, reduce over-representation in the justice system particularly among Aboriginal and Torres Strait Islander people, and ensure that Victoria’s bail laws are compliant with the Victorian Charter of Human Rights. This approach would remove the presumption against bail, require specific risk to justify remand, prevent any person from being remanded for an offence that is not likely to result in a custodial sentence, and repeal every bail offence.(see Part 5, Division 2 BA)
  • The repeal of the ‘reverse onus’ test and a presumption in favour of bail. The Bail Act operates to predetermine the risk of reoffending by creating different categories of offending based solely on the offence that has been alleged. At a fundamental level, bail is primarily about whether an accused person will attend Court. The Bail Act’s categories of offending turn a bail application into a different assessment, which at times is entirely artificial. The presumption of innocence is a central tenet of the criminal justice system. A reverse onus test erodes that very principle. The ‘unacceptable risk’ test, as a standalone test for all bail applications, would go some way to removing these concerns, while providing an appropriate level of scrutiny over who should and should not be granted bail.

When the last decade of bail reforms is reflected upon, it is apparent the latest bail reforms are another step in a continued pattern of reactive amendments to bail laws. Hopefully the most recent trend in bail reform will continue, with future change also geared towards reducing the prison population and protecting the individual and fundamental legal rights without unnecessarily risking community safety.

[1] All references to legislation in this article refer to the Bail Act 1977, unless otherwise referred to as ‘BA’ which refers to the Bail Amendment Bill.

Date Published: 28 February 2024

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