Understanding the New Victorian Bail Legislation: Children

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Cassandra Knight-GrullUna EbsworthThe article Understanding the New Victorian Bail Legislation: Children is written by Una Ebsworth and Cassandra Knight-Grull of Doogue + George Defence Lawyers.

Una has been an Accredited Criminal Law Specialist since 2014 and is a Partner at Doogue + George. She is experienced in a wide range of criminal matters and appears regularly at both higher and lower courts including the Children’s Court of Victoria. Una is recognised as a preeminent criminal lawyer by Doyle’s Guide and is a member of the Accredited Criminal Law Specialist Advisory Committee.

Cassandra is a lawyer at Doogue + George and is a passionate advocate for social justice and criminal justice reform. She has worked with some of Australia’s most experienced barristers, and also shadowed judges at the Melbourne Children’s Court and Broadmeadows Magistrates’ Court while at university. Cassandra also volunteered at Youthlaw and several other organisations.

Children Walking Towards Prison as One of the Factors That Prompted New Bail LegislationIn this guide, we delve into the recent changes in Victorian bail legislation and the specific implications for children.

Background to Reform

The Victorian government recently announced plans to enact reform of the Bail Act 1977 (Vic), with specific amendments focused on improving bail laws for children. These reforms were precipitated by the coronal inquest into the death of a First Nations woman, Veronica Nelson, in custody in 2020. In the findings delivered in January 2023, Coroner Simon McGregor found that a number of systemic failures had contributed to Ms Nelson’s death including the operation of ‘reverse onus’ thresholds in the Bail Act. He noted that the operation of the Act following changes in 2018 had a disproportionate and discriminatory impact on First Nations people and other vulnerable members of the community. He made a number of recommendations to reform the legislation to reduce the disproportionate adverse effects on both First nations people and other vulnerable groups, including children.

Impact of Bail Reform on Children

There has been extensive discussion of these reforms and delays in their enactment. In all bail law, there exists a tension between fundamental principles such as the presumption of innocence and the prosecutorial onus of proof, whilst balancing concerns for community safety and protection. This tension seems to be one of the ongoing reasons for the delays in enacting further reform, particularly given extensive media coverage of public concern around youth crime.

The government has, however, proceeded with changes to bail law as it applies to children, which will commence no later than 25 March 2024. The government has previously foreshadowed further changes to children’s bail, including a presumption of bail for children, except where they are charged with very serious offences. At this stage, those amendments have not been made.

The general changes to the Bail Act, which will affect both adult and child applicants, have been discussed in our article “Understanding the New Victorian Bail Legislation: Adults and First Nations People“.

Child-Specific Amendments

The main child-specific amendment in this suite of reforms is the expansion of the list of ‘considerations’ to be taken into account by a court when hearing any child’s application for bail.

As a starting point, being a child is now considered a ‘special vulnerability’ that must be taken into account by the Court in all applications for bail.1 In addition, when making a determination of whether to grant bail, the Court must now consider other factors including:

  • The presumption of doli incapax – the presumption that children aged 10-14 cannot commit an offence;
  • The child’s age, maturity, and stage of development;
  • The impact of aspects of the child’s background, such as experiences of trauma, neglect and loss, involvement with child protection or removal from the home;
  • Whether the likely sentence will be custodial, and whether that sentence would exceed the time likely to be spent on remand;
  • Any disability, or mental or physical illnesses experienced by the child;
  • A recognition of discrimination faced by certain groups, resulting in their over-representation in the criminal justice system;
  • The ‘importance’ – rather than just the ‘desirability’ – of a child continuing in work, school, or training;
  • That detaining a child in custody is a last resort.

Whilst many of these principles have been articulated in case law and are relied upon regularly in practice, the legislation now mandates that each of these factors is to be considered in every case. Significantly, the amended legislation also requires some of these issues to be taken into account regardless of whether the decision maker is provided with any evidence or information about those issues.2

The reform of this provision is an extensive expansion of child-specific factors that a court must consider, which for the first time recognise the relevance of discrimination, trauma, maturity, and mental illness.

The expanded factors in this section also require the Court to consider the potentially adverse effects of a child being held in custody.3 Rather than reducing re-offending, research shows that placing children in a custodial environment increases the likelihood that they will reoffend. They are exposed to violence and negative peer groups, and displaced from family and education opportunities. Children leave custody with deteriorated mental health and an elevated risk of self-harm. The new considerations require a Court to confront the consequences of detaining a child – potential recidivism and harm to the child – which are factors that should not sit comfortably with most decision-makers.

In addition, the changes recognise that a disproportionate number of children in the youth justice system are coming from backgrounds of trauma or neglect and have cognitive and neurological disabilities. They require Courts to actively consider these factors in both determining bail and also tailoring appropriate conditions for bail.

Looking Forward: The Future of Children’s Bail Law

The recent changes in Victorian bail laws represent a step towards improving the treatment of children in the youth justice system. These reforms have re-centred a number of foundational principles in relation to children and the law: that children are rightly afforded a special status in the criminal law; and, that the custody or detention of a child should be used only as a last resort. While there is still work to be done, these amendments signal a positive shift towards recognising and addressing the unique needs and vulnerabilities of children involved in legal proceedings.

[1] s 38 Bail Amendment Act
[2] s 35 Bail Amendment Act
[3] s 35(1)(h) Bail Amendment Act

Date Published: 06 March 2024

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