Wednesday, 16 August 2023

Bills

Bail Amendment Bill 2023

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:37): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Bail Amendment Bill 2023.

Introduction

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this Statement of Compatibility with respect to the Bail Amendment Bill 2023 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I have this opinion for the reasons outlined in this statement.

Overview of the Bill

Over the past decade, there has been a significant increase in the number of Victorians remanded in custody. The operation of existing bail laws is a major driver of this increase and is disproportionately affecting Aboriginal people, women, children, and people experiencing poverty.

The purpose of the Bill is to create a more proportionate bail response to low-level offending by refining the more onerous bail tests to focus on more serious offending and the gravity of the risks that are presented by a person charged with an offence. In doing so, this Bill will assist in ensuring that Victoria’s bail laws strike the appropriate balance between the right to liberty and community safety.

The Bill will amend the Bail Act 1977 (the Bail Act) to –

• Reduce the circumstances in which reverse-onus bail tests apply so that they only apply to more serious offending, and to children in extremely limited circumstances;

• Better target the application of the ‘unacceptable risk’ test to re-offending that endangers the safety or welfare of another person;

• Expand the factors in sections 3A and 3B that must be considered when an applicant for bail is an Aboriginal person or a child respectively, to better reflect the unique needs and circumstances of these vulnerable cohorts;

• Subject to limited exceptions, prohibit remand for offences against the Summary Offences Act 1966 (the Summary Offences Act);

• Introduce new ‘surrounding circumstances’ in the Bail Act that require bail decision makers to consider (when applying a reverse-onus test or the unacceptable risk test) whether the accused is likely to receive a custodial sentence and, if so, whether they are likely to spend more time on remand than the likely length of that custodial sentence;

• Amend the new facts and circumstances test in section 18AA to encourage represented bail applications at the earliest opportunity;

• Repeal the offences of contravening certain conduct conditions (section 30A) and committing an indictable offence while on bail (section 30B) from the Bail Act; and

• Clarify technical provisions in the Act and modernise the Act.

The Bill will also make consequential changes to other Acts.

Human rights issues

The Bill will amend the Bail Act and reduce the impact of the Act on Charter rights. As discussed in this statement, the operation of the Bail Act does, and will continue to, limit Charter rights, but in my opinion, these are reasonable limitations that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom taking into account relevant factors as outlined in section 7(2) of the Charter.

The human rights protected by the Charter that are relevant to the Bill and the operation of the Bail Act are:

a. right to liberty and security of person (section 21);

b. cultural rights (section 19);

c. right to recognition and equality before the law (section 8);

d. protection of families and children (section 17);

e. right not to have a person’s family unlawfully or arbitrarily interfered with (section 13(a));

f. right to be presumed innocent until proved guilty according to law (section 25(1)); and

g. a child’s right to a procedure that takes account of their age and the desirability of promoting their rehabilitation (section 25(3)).

While matters relating to remand principally engage the right to liberty, the very nature of being remanded in custody or being subject to bail conditions necessarily involves the limitation of other rights, including freedom of movement (section 12), privacy (section 13), expression (section 15) and peaceful assembly and freedom of association (section 16). This is an unavoidable result of the deprivation of liberty and the powers held by officers in charge of custodial facilities that are necessary to maintain good order and security of the facilities and the welfare of detained persons. The family unit will also be affected when a parent or guardian is remanded, which interferes with the privacy and protection of family and engages both section 13 and section 17(1).

Accordingly, when this statement discusses the Bill’s effect on liberty, it is also referring to the bundle of rights that are necessarily affected through the deprivation of liberty and being detained in custody.

Amending the reverse-onus tests under the Bail Act

Section 4 of the Bail Act provides for a general entitlement to bail (sometimes referred to as a presumption of bail). However, this presumption may be displaced due to the seriousness of the charged offence or the circumstances in which an offence is alleged to have occurred. For example, the ‘show compelling reason’ test will apply if an accused is charged with a serious offence listed in Schedule 2 of the Bail Act (such as rape). Alternatively, if an accused is charged with a non-scheduled indictable offence (such as theft), which was alleged to have occurred while the accused was on bail for another non-scheduled offence, they will also face the ‘show compelling reason’ test. This is known as an ‘uplift’ into a more onerous bail test.

Where the presumption in favour of bail has been displaced, the accused bears the burden to satisfy the decision maker that bail is justified to the requisite standard – either the ‘show compelling reason’ test (section 4C) or the most onerous ‘exceptional circumstances’ test (section 4A). This reverses the onus of proof from the prosecution to the accused.

Currently, due to the existence of the uplift provisions, an accused charged with multiple non scheduled indictable offences may be uplifted into the most onerous reverse-onus category, the ‘exceptional circumstances’ test. For example, if an accused is charged with a theft while on bail for another theft they will be uplifted into the ‘show compelling reason’ test. If the same accused is charged with a third theft while on bail, they will face the ‘exceptional circumstances’ test. This is known as a ‘double uplift’. As a result of these provisions, there has been a significant increase in the number of people accused of repeat but relatively minor offending facing reverse-onus tests and, therefore, not being granted bail.

The Bill will preserve the general presumption in favour of bail but make a number of changes to the bail tests that are used to determine whether a person accused of a criminal offence is granted bail or remanded in custody. Specifically, the Bill maintains the reverse-onus tests in sections 4AA, 4A (the ‘exceptional circumstances’ test) and 4C (the ‘show compelling reason’ test) of the Bail Act. However, it will modify the application of these tests so that they are better targeted at persons charged with serious offences or who are a terrorism risk or have a terrorism record. The Bill also differentiates between adult and child applicants for bail. By refining the bail tests to make it more likely that bail will be granted where community safety will not be jeopardised, the Bill seeks to better balance the right to liberty with community safety.

Promotion of the right to liberty (section 21)

Section 21 of the Charter provides that every person has the right to liberty and security (section 21(1)) and that a person must not be deprived of their liberty except on grounds, and in accordance with procedures, established by law (section 21(3)). Further, subsection (6) provides that a person awaiting trial must not be automatically detained in custody. It is plain that a person who does not obtain bail as a consequence of a decision made under the Bail Act has been deprived of liberty on grounds, and in accordance with procedures, established by law. It also the case that the opportunity to be granted bail, including in accordance with the general presumption or under the reverse onus tests means that there has not been “automatic detention”.

Subsection (2) provides that a person must not be subjected to arbitrary arrest or detention. The word ‘arbitrary’ has a particular legal meaning. In section 21(2) of the Charter it broadens the right beyond freedom from unlawful arrest and detention – an arrest or detention will limit the right because it is ‘arbitrary’ if it is capacious, unjust, unreasonable or disproportionate to a legitimate aim. The Bill, by narrowing the application of the reverse onus tests, ensures that a refusal to grant bail will not be arbitrary for the purpose of section 21(2).

Clause 8(2) of the Bill will narrow the application of the reverse-onus tests to adults charged with serious criminal charges that are specified in the Bail Act schedules by repealing items 1 and 30 of Schedule 2. Item 1 is an indictable offence alleged to have been committed while on bail (among other circumstances). Item 30 is an offence against the Bail Act. Importantly, the repeal of items 1 and 30 from Schedule 2 will eliminate the possibility of ‘uplift’ into a reverse-onus category for adults charged with repeat, lower-level offences. The effect of this amendment is that only those accused of a serious offence that is listed in the Bail Act schedules (or someone who has a terrorism record or poses a terrorism risk) will face a reverse-onus bail test. The Bill removes the possibility of uplift into a reverse-onus category where the offence is alleged to have occurred in particular circumstances, for example, where a person offends while on bail, rather than because of the gravity of the offence itself or the risk to community safety.

Part 4 of the Bill complements the narrowing of the reverse-onus tests by repealing two of the three Bail Act offences (contravening certain conduct conditions and committing an indictable offence while on bail). These reforms effect a more proportionate response to bail breaches that is more consistent with the right to liberty.

The Bill preserves uplift consequences for those charged with an offence listed in Schedule 2 while on bail (or subject to another order) for another Schedule 2 offence. Divisions 5 and 6 of Part 2 of the Bill change the circumstances in which uplift will occur.

Conversely, clause 25 provides that adults charged with a scheduled offence while on remand or while at large awaiting sentence for a Schedule 2 offence will be uplifted into the exceptional circumstances test. This change will ensure that those charged with serious offences while on remand or at large awaiting sentence are treated in the same way under the Bail Act as those charged with serious offences while on bail or at large awaiting trial.

Clause 26(2) of the Bill provides that a person released on an undertaking under the Sentencing Act 1991, will not be considered at large awaiting sentence, or serving a sentence, for the purposes of determining whether the exceptional circumstances test applies per section 4AA(2) of the Bail Act. This change reflects the fact that an adjourned undertaking is lower in the sentencing hierarchy than a fine, which does not attract the same uplift consequences under the Bail Act. This has the effect of ensuring that adults who are charged with a Schedule 2 offence, whilst subject to an undertaking for another Schedule 2 offence, are no longer uplifted to the exceptional circumstances test. The balance of these amendments mean reverse-onus tests are only applied to the most serious offending identified in the Schedules and to those who pose a terrorism risk or have a terrorism record. This reflects a more balanced and targeted approach by responding to the challenges arising from the inflexibility of the current bail laws and their potential for arbitrary outcomes, while maintaining an appropriately robust approach to serious offenders.

While the Bill will narrow the application of the reverse-onus tests, these tests will still apply where appropriate and will result in the remand of accused persons who do not meet the applicable test. This will be considered further below.

Promotion of the protection of children (sections 17(2) and 25(3))

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This right embraces modification to laws that apply to children to adequately account for a child’s special vulnerability. As a related right, section 25(3) of the Charter also provides that a child charged with a criminal offence has the right to a procedure that takes into account their age and the desirability of promoting the child’s rehabilitation. This includes prioritising prevention, diversion and minimum intervention in response to offending by children, in order to address the causes of offending behaviour at an early stage and divert the child away from the criminal justice system.

Clause 18 of the Bill will remove the application of reverse-onus tests for almost all children charged with a criminal offence. Clause 18 does this by inserting into the Bail Act new section 4AAB. Section 4AAB sets out when the ‘exceptional circumstances’ and ‘show compelling reason’ tests apply to a decision about whether to grant bail to a child. Reverse- onus bail tests will continue to apply to children charged with a homicide offence, schedule 1 terrorism offence or who have a terrorism record or pose a terrorism risk in a manner consistent with the current provisions of the Bail Act (see clause 18). This exception reflects the inherently serious nature of terrorism and homicide offences, and expert findings that children are a particular target for radicalisation. While a child may have a lesser status or culpability at law, they may still pose the same level of risk to the community as an adult offender and the same potential to commit terrorist acts that cause serious and catastrophic harm. In order to ensure the community is adequately protected from the threat of terrorism, it is necessary and appropriate that a presumption against bail for those that pose a terrorist risk continue to apply to children without modification, and that children be deterred and prevented from engaging in acts of terrorism to the greatest extent possible.

Maintaining existing limits on the right to liberty (section 21)

The Bill will narrow the application of reverse-onus tests and reduce existing lawful limitations on rights under the Bail Act. Nonetheless, the Bill largely maintains the existing bail framework under which an accused person can be remanded in custody, where that is appropriate. Even though the effect of the Bill is to reduce limitations on rights, I consider it appropriate to discuss the existing limits on the right to liberty in the Bail Act and why these limitations remain reasonably justified.

As set out above, the reverse-onus tests engage section 21(2) of the Charter in that the use of these tests may be considered an arbitrary limitation on the right to liberty. In the context of bail laws generally, the right of an individual to liberty must be balanced against the safety of the community, including both protection from serious criminal offending and promoting feelings of safety. These competing rights are reflected in the guiding principles of the Bail Act (at section 1B), which recognise the importance of maximising community safety as well as taking account of the presumption of innocence and the right to liberty. In my view, retaining reverse-onus bail tests for more serious offences and for accused who pose a terrorism risk or have a terrorism record is justified under the Charter as it gives effect to a purpose of the Bail Act, namely striking a balance between the importance of maximising the safety of the community and persons affected by crime with the presumption of innocence and the right to liberty for persons accused of a crime. The limitation on the right is narrow as the reverse-onus tests apply only to those pose a terrorism risk or have a terrorism record or who are charged with serious offences, who it can be reasonably presumed may pose a greater risk to community safety. The offences that attract a reverse-onus test are specified in clear lists appended to the Bail Act.

In my view, these provisions are not arbitrary as they are a proportionate response to concerns about community safety. By targeting those charged with serious offences the bail laws strike an appropriate balance. The Bill will limit the application of the reverse-onus bail tests by removing uplift consequences for those who are charged with multiple offences that are not listed in the Bail Act schedules. This means that reverse-onus tests will only apply to those charged with offences listed in the Bail Act schedules or who have a terrorism record or pose a terrorism risk. Through the Bail Act, Parliament has deemed the relevant offences specified in the Bail Act schedule as serious enough to warrant satisfaction of a more onerous test before bail can be granted. Importantly, even under the reverse-onus tests a bail decision maker has discretion to grant bail if the onus is met and it is appropriate in the circumstances.

Retaining reverse-onus tests also engages section 21(6) of the Charter, which provides that a person awaiting trial must not be automatically detained in custody. As mentioned, the Bail Act retains a discretion for bail decision-makers to grant bail. Further, the Bill maintains a presumption in favour of granting bail in most cases, and the Bill broadens the circumstances in which this presumption applies. Accordingly, it cannot be said that a person will be ‘automatically’ detained – rather, detention occurs if a bail decision maker decides to refuse to grant bail in accordance with the Bail Act. The Bill does not affect existing provisions regarding obligations of police, bail justices and courts to consider bail applications in a timely manner, nor the obligation of police to bring a person before a court or bail justice following arrest. As such I am of the view that the Bill is compatible with the right at section 21(6) of the Charter.

Presumption of innocence (section 25(1))

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

As bail is an ancillary criminal process, it is not directly relevant to a determination of guilt. However, the presumption of innocence has been described as the starting point for bail applications. That is, the presumption of innocence must be considered when deciding a bail application.

This Bill will not change the existing guiding principles in section 1B of the Bail Act which recognise the importance of the presumption of innocence (together with the right to liberty). Bail decision makers will continue to have regard to the significance of the presumption of innocence when determining bail applications.

In my opinion, neither the Bill nor the Bail Act limits the right to the presumption of innocence.

Further confining the circumstances for remand – Parts 2, 4 and 5 of the Bill

As well as refining the reverse-onus tests for people accused of low-level offending, the Bill will make other targeted changes to narrow further the circumstances in which a person may be remanded under the Act, through:

• subject to limited exceptions, prohibiting remand for offences against the Summary Offences Act;

• better targeting the application of the ‘unacceptable risk’ test to re-offending that endangers the safety or welfare of a person;

• requiring bail decision makers to consider, when applying a reverse-onus test or the unacceptable risk test, whether the accused is likely to receive a custodial sentence if found guilty of the charged offences, and if so, whether the likely time on remand is likely to exceed the length of that sentence;

• providing a new exception to the ‘new facts and circumstances’ test to encourage represented bail applications at the earliest opportunity; and

• repealing two offences against the Bail Act, namely contravening certain conduct conditions (section 30A) and committing an indictable offence while on bail (section 30B).

Each of these reforms promotes the right to liberty by improving the prospect of bail for a number of people charged with an offence and who do not present an unacceptable risk to the safety of the community, as I elaborate on below.

Promotion of the right to liberty (section 21)

Clauses 9 and 10 will further protect against arbitrary interferences with the right to liberty by prohibiting remand for those charged with certain summary offences. Clause 10 does this by requiring the court to grant a person bail or to allow the person to go at large if that person is, subject to limited exceptions, accused of an offence against the Summary Offences Act. Clause 9 inserts into the Bail Act new section 4AAA, which again provides, subject to limited exceptions, that a bail decision maker must not refuse bail to a person accused of an offence against the Summary Offences Act (new section 4AAA(1)), and no exception applies.

The exceptions to the prohibition on refusing bail provided under clauses 9 and 10 are offences against the Summary Offences Act that are specified in the new Schedule 3. Schedule 3 is inserted by clause 11 and sets out offences of a more serious nature. Accordingly, all of the offences for which remand is prohibited are relatively minor Summary Offences that are not sexual, violent or of a more serious nature, and which are often committed by a person experiencing disadvantage. The Bill does not interfere with existing provisions of the Bail Act that empower a court to revoke bail where appropriate.

Clause 36 of the Bill seeks to ensure that bail decision makers carefully consider the likely time of remand as compared to the possibility of, and likely length of, a custodial sentence if the accused person is found guilty of the offence. It does this by introducing additional ‘surrounding circumstances’ that must be considered by a bail decision maker when applying an applicable reverse-onus test or the unacceptable risk test. The new surrounding circumstances will expressly require a bail decision maker to consider whether the accused is likely to be sentenced to a term of imprisonment (new section 3AAA(1)(aa)(i)) and to compare the likely time on remand against the likely length of any custodial sentence (new section 3AAA(1)(aa)(ii))) but will not mandate that bail be granted. Rather, a bail decision maker will weigh the new considerations against all other relevant surrounding circumstances when determining a bail application. A bail decision maker is required to take into account a similar consideration in respect of children (see clause 35 and new section 3B(1)(k)). It is anticipated that the Bill will reduce the likelihood of persons being remanded in circumstances where they are unlikely to receive a custodial sentence or where the likely time on remand is likely to exceed the length of any custodial sentence (if the accused is found guilty of the charged offence). In doing so, the Bill will emphasise the importance of making bail decisions that are proportionate to any limitation on the right to liberty likely to be imposed by way of a sentence.

Clause 14 will amend the ‘unacceptable risk’ test (section 4E of the Bail Act) so that it better targets those who pose an ‘unacceptable risk’ of re-offending that may endanger the safety or welfare of another person. The Bill will therefore distinguish between a risk of serious re-offending and a risk of low-level or petty re-offending and will promote the right to liberty by narrowing the circumstances in which a remand decision can be made.

Clause 14 will repeal section 4E(1)(a)(ii) and amend section 4E(1)(a)(i) of the Bail Act to provide that a bail decision maker must refuse bail if they are satisfied that the accused would, if released on bail, endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means. This amendment has the effect of excluding from the unacceptable risk test a risk of further offending while on bail that does not endanger the safety or welfare of any other person. Subsections 4E(1)(a)(iii) and (iv) of the Bail Act will remain unchanged, such that a bail decision maker must refuse to grant bail where they are satisfied there is an unacceptable risk the accused will interfere with a witness or otherwise obstruct the course of justice in any matter, or fail to surrender into custody in accordance with the conditions of bail.

Under the revised test, a risk of re-offending that does not endanger the safety or welfare of any other person will no longer satisfy the unacceptable risk threshold. This will limit the remand of those accused of minor offences who pose little risk to the community or to the administration of justice.

Clause 115 will amend section 18AA to limit the circumstances in which a person must demonstrate new facts and circumstances test when making a further application for bail. This is intended to encourage the making of represented bail applications at the earliest opportunity by enabling all accused to make two legally represented applications for bail before a court after being taken into custody without having to demonstrate new facts and circumstances. This reform will reduce instances of short-stay remand in which people are remanded for short periods of time while they prepare for a represented bail application. Following two legally represented applications, an accused person will still need to demonstrate new facts and circumstances to make a further application with legal representation. The reform does not remove an accused person’s ability to make a further application for bail without demonstrating new facts and circumstances at any point if the person was not legally represented when bail was refused or revoked. This reform therefore promotes the right to liberty.

As outlined above, Part 4 of the Bill will repeal two of the three offences against the Bail Act, namely contravening certain conduct conditions (section 30A) and committing an indictable offence while on bail (section 30B). This reform will reduce instances of an accused being charged with multiple offences for a single act, which may in turn encourage the granting of bail. For example, at present a person on bail who allegedly commits theft may be charged with both theft and committing an indictable offence on bail. By reducing the number of offences that can be charged for a single act, the Bill encourages more proportionate bail responses.

Likewise, repealing the offence of contravening certain conduct conditions will also encourage more proportionate bail responses as it will remove the possibility of a person being charged for conduct which would not otherwise constitute a criminal offence if not for the person’s bail conditions. For example, bail breaches such as failing to report to a police station as required, returning home past curfew or failing to update the police informant about a change of address, will no longer attract criminal charges. Bail revocation will remain an option for bail breaches to ensure appropriate consequences for this behaviour, however repealing the offence of contravening certain conduct conditions will mean people are not further criminalised for low-level bail breaches.

The Bill does not repeal the offence of failure to answer bail (section 30). Ensuring the accused’s attendance at court is a fundamental purpose of bail. This offence has existed since the Bail Act first commenced in 1977 and has always been subject to a reverse onus. Until 2004, the offence was also subject to an additional prohibition on remand unless the accused could satisfy the court that the failure was due to causes beyond the accused’s control. This prohibition was repealed to reduce any discriminatory impact on disadvantaged cohorts, following a 2001 Victorian Law Reform Commission review. That review was the Commission’s first community law project and was prompted by an approach by the Victorian Aboriginal Legal Service. It was only after the 2013 introduction of two new Bail Act offences that remand rates increased significantly. Furthermore, by repealing item 30 of Schedule 2, the reverse-onus tests will no longer apply to failure to answer bail, avoiding ‘uplift’ to a more onerous bail test, as discussed above. This means that, for the first time since its inception, the offence of failure to answer bail will not attract a reverse onus test. This will also encourage more proportionate bail responses, as a person charged with this offence will not have to satisfy a reverse onus.

New factors to be considered where applicant is an Aboriginal person or a child – Part 3 of the Bill

The Bill provides for new factors in sections 3A and 3B of the Bail Act that must be considered when an applicant for bail is an Aboriginal person or a child respectively, noting that where the applicant is an Aboriginal child the bail decision maker must take into account the factors in both clauses 33 and 35. These provisions will promote the rights to equality (section 8), culture (section 19) and protection of children (section 17(2)) in the Charter.

Clause 33 provides further particularisation of the existing considerations in section 3A to give more guidance to bail decision makers and ensure the considerations are central to all bail determinations where the applicant is an Aboriginal person. The revised provision reflects the persisting systemic issues contributing to the over-representation of Aboriginal people in the criminal justice system and details the experiences of Aboriginal Victorians including factors that make them particularly vulnerable in the bail and remand system. The expanded list of considerations also recognises the importance of maintaining and developing cultural connection and will assist bail decision makers to make culturally appropriate bail decisions. Clause 33 also requires bail decision makers who have refused bail to an Aboriginal person to identify the matters they had regard to in taking into account the issues set out in section 3A(1), as amended, and to record those matters in writing or state them orally.

Clause 35 will expand and modernise the considerations in section 3B (factors that must be taken into account by a bail decision maker when making a bail determination in relation to a child) to ensure they account for the special needs and vulnerability of a child, and the detrimental impact of remand for children.

Clause 38 amends section 3AAA(1)(h) by listing what may constitute a ‘special vulnerability’ and adding a physical disability to that list.

Promotion of the right to equality (section 8)

Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.

‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 on the basis of an attribute in section 6 of that Act, which relevantly includes age, race, gender identity, religious belief and disability. Relevantly, indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.

Clauses 33 and 35 seek to promote equality rights and children’s rights by providing an updated list of factors that must be considered by bail decision makers when making a bail determination in relation to an Aboriginal person or a child respectively. These reforms seek to ensure that bail decision makers properly consider all factors relevant to an individual bail application, including those that may mitigate against a limitation on the right to liberty. The revised provisions intend to give effect to the reasons the considerations were originally inserted in the Act. For example, clause 33 acknowledges 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’ (section 3A(1)(a), as amended). In respect of children, pursuant to the amendments made to section 3B of the Bail Act by the Bill, ‘a bail decision maker must take into account … the need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being a last resort’ (section 3B(1)(b), as amended).

The amended considerations in clause 33 promote equality for Aboriginal Victorians by acknowledging the unique disadvantages Aboriginal people have and continue to face and recognises ‘the risk of harm and trauma that being in custody poses to Aboriginal people’ (section 3A(1)(b), as amended). In effect, the Bill will require specific consideration of factors relevant to the exercise of Aboriginal cultural rights, which in turn will inform bail decisions involving Aboriginal people. This will encourage the making of bail decisions that are consistent with Aboriginal cultural rights to the extent possible. As is currently the case under the Bail Act, clause 33 will be relevant when making all determinations under the Bail Act. This may include extending, granting or revoking bail and setting or varying bail conditions, not just granting or refusing bail.

Clause 33 of the Bill also requires that bail decision makers must take into account the importance of Aboriginal bail support services when setting bail conditions for an Aboriginal person where such services are available and where appropriate, noting that the Aboriginal person may not always wish to engage with an Aboriginal service.

For children, clause 35 will require bail decision makers to consider the fact that some cohorts of children (such as Aboriginal children, children involved in the child protection system, and children from culturally and linguistically diverse backgrounds) experience discrimination, which results in their over-representation in the criminal justice system (see new section 3B(1)(j)).

No limit on the right to equality (section 8)

Section 8(4) of the Charter qualifies the equality right by clarifying that measures taken for the purpose of assisting or advancing persons or groups who are disadvantaged because of discrimination, do not constitute discrimination.

As outlined above, clause 33 of the Bill requires bail decision makers to consider the additional factors in section 3A when the applicant for bail is an Aboriginal person. As a consequence, Aboriginal applicants for bail, including Aboriginal children, are treated differently under the Bail Act than non-Aboriginal applicants.

As the amendments only have the effect of introducing new considerations concerning Aboriginal people, including their cultural rights and obligations, that bail decision makers must ensure their determination accounts for, I do not consider that this results in unfavourable treatment of other groups of people. However, even if it did, it would not constitute discrimination as it would be a special measure under section 8(4) of the Charter. This is because its purpose is to assist and advance Aboriginal people, who are more likely than non-Aboriginal people to be remanded in custody. The continuing and increasing overrepresentation of Aboriginal people in the remand system is a symptom of the discrimination experienced by Aboriginal people in Victoria.

As such, proactive steps are required by this Parliament to address discrimination which has been a cause of Aboriginal disadvantage in the bail and remand system. The proposed differentiated approach is appropriately limited as it requires a bail decision maker to take into account Aboriginal-specific factors when determining a bail application but does not mandate a particular decision – in other words, the bail decision-maker retains a discretion to grant or refuse bail having considered all the relevant circumstances. Aboriginal people may still be remanded in custody despite a proper consideration of the updated Aboriginal-specific factors and section 3A of the Bail Act.

Cultural rights (section 19)

Section 19(2) of the Charter provides that Aboriginal persons hold distinct cultural rights, including the right to maintain kinship ties and their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

Aboriginal culture has its own concept of kinship and Aboriginal kinship networks may extend beyond the immediate family and into other parts of their community. The Bail Act directly affects the exercise of Aboriginal cultural rights because a decision to remand an Aboriginal person may interrupt cultural connections, including kinship networks, and restrict access to places of spiritual significance for Aboriginal people.

By requiring bail decision makers to consider certain factors in relation to Aboriginal people (clause 33) (including a note to remind bail decision makers of the distinct cultural rights Aboriginal persons hold under the Charter) the Bill will support the exercise of Aboriginal cultural rights, including the right to enjoy identity and culture, maintain kinship ties and connection to country, traditional laws and customs. This is crucial to ensuring that there are fewer barriers for Aboriginal people to the enjoyment of cultural rights and, in that way, the Bill will promote the right in section 19.

Protection of children (section 17(2))

As discussed above, the Bill updates the child-specific considerations in section 3B of the Bail Act to better recognise the vulnerability of children and the detrimental impact of remand for children, and to reflect the key themes of recommendation 58 of the Our Youth, Our Way Report. Clause 35 of the Bill will require bail decision makers to take into account:

• the need to impose on the child the minimum intervention required in the circumstances, with remand being a last resort;

• the child’s age, maturity and stage of development;

• the common law presumption of doli incapax, that a child who is 10 years of age or over but under 14 years of age cannot commit an offence;

• any cognitive impairment, mental illness or disability of the child;

• the child’s personal history; and

• any other relevant factor or characteristic.

Where an applicant for bail is an Aboriginal child, the bail decision maker must take into account both clauses 33 (setting out considerations in relation to an Aboriginal person) and 35 (setting out considerations in relation to a child).

In my opinion, the Bill promotes the rights of children and families. The extent to which any limitation remains is reasonable and justified for the reasons discussed above.

Conclusion

In my opinion the Bill does not unreasonably limit any Charter rights. The amendments to the Bail Act achieve a proportionate balance between the rights protected under the Charter and the protection of the community.

I consider the Bill to be compatible with the Charter.

The Hon. Anthony Carbines MP

Minister for Police

Minister for Crime Prevention

Minister for Racing

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:38): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Bill introduces a suite of changes to the Bail Act 1977 to ensure our bail laws protect the whole community and better target the use of remand to cases where it is necessary to prevent an unacceptable risk to community safety.

The government introduced changes to Victoria’s bail laws in 2017 in response to the tragic events in the Melbourne CBD on 20 January of that year, when James Gargasoulas murdered six people and injured many others. Mr Gargasoulas was on bail at the time, and this was not the first violent crime that had undermined public confidence in the bail system.

In response to these events, government asked the Honourable Paul Coghlan QC to undertake an urgent review of Victoria’s bail laws, with the aim of increasing community safety and restoring the public’s trust in the bail and justice systems. The government then committed to implementing, or going further than, all of the recommendations in Mr Coghlan’s first report.

The subsequent legislative changes made Victoria’s bail laws the toughest in the country, including by making it more difficult for repeat offenders to get bail. The changes were intended to ensure that offending on bail should have consequences. In order to achieve that, a tougher bail test applied to people alleged to have committed offences while on bail. Those changes have become known as the ‘uplift’ provisions.

The changes, which came into effect in 2018, resulted in a significant increase in remand numbers. The changes were made to safeguard the community. However, it is our job to make sure that the protection of the community includes all members of the community, especially those who are most vulnerable. The 2018 changes to the Bail Act left some of our community disproportionately exposed to criminalisation and incarceration. In this respect, we got the balance wrong.

We know that the changes we made have had a disproportionate impact on people who were already experiencing significant disadvantage, with a particular impact on Aboriginal people, people with disabilities, children and women. Ultimately, the net was cast too wide.

The reforms we are now introducing seek to ensure that all members of the community are protected, and that low-level offending is responded to proportionately and effectively. We acknowledge that these reforms are urgently needed. They will take effect as of 12 February 2024, which balances this need for change with the time that the courts, police, and legal assistance providers will need for implementation.

The disproportionate impact of bail laws on vulnerable Victorians has been highlighted by the case of Ms Veronica Nelson, a proud Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman who died at Dame Phyllis Frost Centre on 2 January 2020. Veronica was on remand, having been refused bail in December 2019 for shop theft offences. I express my profound and deepest sympathies to Veronica’s family, friends and community.

The recent coronial inquest into Veronica’s death found that the bail system has a discriminatory impact on Aboriginal people resulting in grossly disproportionate rates of remand, with the most significant impact being on Aboriginal women. The reforms in the Bill will address well-documented concerns with our current bail laws, which were highlighted in the Inquest into Veronica’s death. It will do this by:

• refining the bail tests to focus on serious alleged offending and serious risk;

• reducing the overrepresentation of vulnerable groups in the justice system including women, Aboriginal peoples and children; and

• appropriately balancing the response of the system to accused people with the rights and protection of victim-survivors and the community.

Remand and custody should be used to keep Victorians safe, not to further punish the most vulnerable members of our community. Our new laws will reflect that.

I will now explain the key features of the reforms.

Preventing inappropriate ‘uplift’ to higher reverse-onus tests

The Bill introduces a balanced and flexible approach to bail decisions for adults that more appropriately targets reverse-onus tests to those accused of serious offending. This should help to avoid the remand of those accused of relatively minor offences who would not pose an unacceptable risk to community safety if they were released on bail.

We have heard of examples such as a man who was charged with stealing less than $2 worth of petrol, then refused bail and held in custody for nearly 24 hours because the ‘uplift’ provisions meant he faced the most onerous bail test. There should be consequences for breaching bail, but it is clear that the current consequences are too harsh and too broadly applied.

This is just one example of the unintended consequences resulting from the ‘uplift’ provisions, which were primarily intended to encourage compliance with bail by imposing more onerous bail tests on people alleged to have offended while on bail. However, we now know that the blanket application of the uplift provisions is at least partially responsible for the remand of people accused of minor offences who pose little risk to the community if released on bail.

In particular, the ‘double uplift’ brought about by the 2018 reforms to the Bail Act resulted in those accused of repeat lower-level offences facing the same tough reverse-onus bail test as those charged with the most serious offences such as murder. For example, a charge of minor shop theft allegedly committed when a person is already on bail for an earlier charge of shop theft results in the person having to ‘show compelling reason’ to be granted bail. This test applies to serious offences such as rape. A further minor shop theft allegedly committed on bail results in the person having to establish ‘exceptional circumstances’ in order to be granted bail. This is same test applied to an alleged murderer. The total value of these thefts could be just a few dollars and the risk to community safety minimal.

The Bill addresses this perverse outcome by providing that reverse-onus tests will apply only to the serious offences specified in the schedules in the Bail Act. This will be done by removing uplift consequences from non-scheduled offences and Bail Act offences. Reverse onuses will still apply to the serious offences listed in Schedules 1 and 2 to the Bail Act. These changes will simply reduce the scope for alleged minor offending to be treated disproportionately and inflexibly by the bail system due to the blanket approach of the uplift provisions.

The Bill will not change the treatment of those deemed to be a terrorist risk, or who have a terrorism record – a reverse onus test will continue to apply.

I want to emphasise that accused people must comply with their bail conditions, and that alleged offending while on bail is a serious matter. As with any accused person, alleged minor offenders will still be remanded if they pose an unacceptable risk to the community. When a person is not complying with their bail conditions, police and prosecutors have the discretion to apply for bail conditions to be varied or bail to be revoked. Criminal penalties will continue to apply to the minor offending that is targeted by this reform.

Refining the unacceptable risk test

Refinements to the unacceptable risk test will support the reverse-onus reforms. The current test requires that bail be refused if there is an unacceptable risk that the accused, if released on bail, would:

• endanger the safety or welfare of another;

• commit an offence;

• interfere with witnesses or obstruct the course of justice; or

• fail to surrender into custody.

Under the current test, a person can be remanded due a perceived risk of minor reoffending that would not pose a risk to community safety. If left unchanged, it would frustrate the intent of the reforms to ensure that accused are only remanded where necessary. To address this, the Bill refines the unacceptable risk test so that a risk of minor, non-violent reoffending cannot by itself result in an accused person being remanded.

A bail decision maker will still be able to remand an accused person if their risk of offending on bail poses a risk to the safety or welfare of another person. For example, an accused person who poses a risk of family violence offending must be remanded if they are an unacceptable risk to the safety or welfare of any person, which would include a victim-survivor of family violence. The risk is not confined to violent offending. A risk of property-based offending may pose an unacceptable risk of endangering the welfare of another and in that case the accused must be remanded.

The unacceptable risk test will continue to apply to all offences. The accused will still be remanded where bail is considered to pose too great a risk to the community or to the administration of justice. This reform simply allows decision makers to weigh up the gravity of potential reoffending and associated community safety risk in a more nuanced fashion. Recent cases have clearly demonstrated that custody can be a disproportionate response to the risk that an accused might, for example, commit minor thefts simply to have enough food to eat.

Repeal of Bail Act offences

The Bill repeals two of the Bail Act offences – commit indictable offence whilst on bail and contravene conduct condition of bail. These offences, which were introduced in 2013, have had a disproportionate impact on women, Aboriginal people and people experiencing disadvantage. Repealing these offences responds to calls from the legal community and recommendations made by the Coroner in the Veronica Nelson Inquest.

Remand data shows that in the years following the commencement of the two new bail offences, there was a substantial increase in the size of Victoria’s remand population that was far above the increase in Victoria’s crime rate. Data also shows that the offences have particularly impacted those accused of low-level offending, making them more likely to be remanded. Vulnerable individuals whose lives are already subject to instability, or First Nations people whose bail conditions are culturally inappropriate, face an increased risk of non-compliance with their bail conditions. These individuals may end up with more charges for breaches of bail conditions than the initial charge for which they were arrested. Therefore, the retention of these offences risks embedding these cohorts further into the criminal justice system.

There will still be consequences for breaching bail conditions or committing further offences on bail. For example, when a person breaches a conduct condition of bail, police can apply to the court for stricter conditions to be imposed or for bail to be revoked. A person who commits an indictable offence on bail is already facing a charge for that indictable offence. Similarly, non-compliance with bail conditions or further offending on bail must be considered by bail decision makers as part of the surrounding circumstances when deciding whether to grant or refuse bail. These matters are also taken into account in sentencing.

This reform aims to prevent the compounding, negative impacts the 2013 bail breach offences have had on vulnerable cohorts, but it retains the mechanisms to remand serious offenders who blatantly breach their bail and threaten community safety.

The offence of failure to appear on bail is retained. Attendance at court is central to the purpose of the bail system, as well as being necessary to the efficient operation of the courts. The offence of failure to answer bail has existed since the Bail Act commenced in 1977, and it has not caused the kinds of issues created by the new offences. A reverse onus test will no longer apply to this offence, which will further limit the risk of inappropriate remand decisions.

Child bail reforms

The increased diversionary focus articulated in the 2022 Youth Diversion Statement has significantly reduced unnecessary remand of accused children and young people. However, some children and young people are still being remanded for committing minor offences, particularly while on bail. A differentiated approach to child bail is necessary to address the unique vulnerabilities and complex disadvantages that children and young people can face. Keeping children out of custody and in the community will encourage them to retain pro-social connections, leading to improved individual outcomes and enhanced community safety in the long term.

The presumption against bail is in many cases an inappropriately high barrier for children. The Bill excludes children from the application of reverse-onus bail tests, with limited exceptions for murder and other homicide offences, so that bail decisions relating to children will be solely based on the unacceptable risk test. These reforms will give better effect to the principle of custody as a last resort for children and better reflect the unique risks and vulnerabilities of children.

As with adults, reverse-onus bail tests will continue to apply to children accused of terrorism offences, who pose a terrorism risk or have a terrorism record. This reflects the unique seriousness and the significant impact of terrorism on victims and community.

The Bill updates the child-specific considerations in the Bail Act to modernise the considerations and ensure they account for the special needs and vulnerability of a child and the detrimental impact of remand for children. In addition to the current considerations in section 3B of the Bail Act, bail decision makers will need to take into account:

• the need to impose on the child the minimum intervention required in the circumstances, with remand of the child being a last resort;

• the common law presumption of doli incapax, that a child over 10 but under 14 years of age cannot commit an offence;

• the child’s age, maturity, and stage of development;

• the child’s personal characteristics and history, including any experiences of abuse, trauma, out of home care or involvement with child protection;

• any cognitive impairment, ill health including mental illness, or disability of the child;

• whether the child would likely be sentenced to a term of imprisonment if found guilty, and if so, whether time spent on remand if bail is refused would exceed the term of imprisonment;

• the importance of supporting the child to engage in education, work or training with minimal disturbance or interruption;

• the criminogenic and other risks that time in custody has been shown to have on children; and

• the fact that some cohorts of children experience discrimination, resulting in their over-representation in the justice system (such as Aboriginal children, children involved in the child protection system and children from culturally and linguistically diverse backgrounds).

Aboriginal-specific considerations

Section 3A of the Bail Act provides a list of non-exhaustive considerations that must be taken into account when making a bail determination in relation to an Aboriginal person, including setting bail conditions. It was intended to recognise the fact that Aboriginal peoples are overrepresented on remand and face unique disadvantages in their contact with the criminal justice system. However, the provision has not always worked as intended. It is poorly understood and applied inconsistently.

Following extensive consultation with Aboriginal communities, the Bill amends section 3A to give greater guidance to bail decision makers. This includes consideration of broader systemic factors that drive inequality as well as circumstances relevant to Aboriginal people, including factors that make them particularly vulnerable in custody. The provision is also intended to support the common law responsibility on bail decision makers to ensure incarceration rates of Aboriginal peoples are not further compounded unless there is good reason (see Re HA (a pseudonym) [2021] VSCA 64).

New section 3A requires consideration of:

• systemic factors that have resulted, and continue to result in the over-representation of Aboriginal peoples in the criminal justice system and remand population, and the increased risks of Aboriginal peoples in custody;

• personal circumstances and the lived experiences of Aboriginal peoples that may make a person particularly vulnerable in custody, may be a causal factor for offending behaviour, or may be disrupted by being remanded, such as disability, trauma, family violence, involvement with child protection, housing insecurity and caring responsibilities;

• the importance of maintaining protective factors that play a significant role in rehabilitation, such as connection to culture, kinship, family, Elders, country and community; and

• any other cultural obligations, such as sorry business.

Bail decision makers may consider information that is reasonably available to support decision making. Some factors relating to personal circumstances will not always be relevant, and will depend on the circumstances of the case. The provision recognises that decision makers should consider the importance of giving family, community or Aboriginal support services the opportunity to provide this information, in recognition of the importance of Aboriginal people being involved in decisions made about other Aboriginal people.

In setting bail conditions, bail decision makers must also consider the importance of available Aboriginal bail support services, as this may enable compliance with conditions.

Section 3A also requires bail decision makers to identify and record the relevant matters they took into account when refusing bail to an Aboriginal adult or child to ensure they engage meaningfully with the considerations. Bail decisions are difficult – the decision maker must balance a complex set of circumstances and weigh up many competing considerations under the Bail Act. The requirements under section 3A are not intended to be onerous. The new requirement provides a level of flexibility as to how bail decision makers record the matters they had regard to. Despite this discretion, it is important the relevant matters are recorded appropriately to promote consistency and transparency in decision making and to embed culturally safe practices in the bail system.

While section 3A requires a bail decision maker to take into account Aboriginal-specific factors, it does not mandate a particular outcome. The bail decision-maker retains discretion to grant or refuse bail having considered all the relevant circumstances and tests. The provision is intended to prompt bail decision makers to challenge any unconscious biases and make more culturally appropriate decisions.

Restricting remand for summary offending

The Bill will introduce a provision that prohibits remand for minor offences in the Summary Offences Act 1966. This covers offences that often occur as a result of disadvantage, and a custodial sentence is either prohibited by the Act or very unlikely if the accused is found guilty. This will assist in keeping vulnerable people out of custody where their offending is of such a minor nature. The reform intends to make clear that remand is not an option for these offences. However, the accused may be bailed subject to conditions, and if these conditions are breached then bail may be revoked. This maintains consequences for breach, while ensuring a person cannot be initially remanded for these offences.

This reform does not remove the ability of bail decision makers to appropriately account for community safety. Certain summary offences are sufficiently serious that remand should remain an option. The Bill lists offences that are excluded, such that remand remains an option for violent, sexual, and other more serious summary offences.

Consideration of likelihood of custodial sentence

Existing bail laws may cause an accused person to spend more time in custody on remand than a court would have wished to impose under their ultimate sentence. A person can still be remanded even when it is unlikely they will receive a custodial sentence, if that is required for community safety. However, this should not be something that occurs unless truly necessary.

Recent data shows a considerable increase in the number of fully ‘time served’ sentences, whereby a person’s custodial sentence is equal to the number of days they have already spent on remand. This suggests that, in at least some cases, a non-custodial or shorter custodial sentence would have been appropriate but the time spent on remand was instead deemed to be the person’s ‘sentence’. This has disproportionately occurred in the case of certain cohorts, particularly women.

To address this, the Bill updates the surrounding circumstances in section 3AAA(1) to require bail decision makers to consider, when applying a reverse-onus test and/or the unacceptable risk test, whether the accused is likely to be sentenced to a custodial sentence. If so, they must consider whether the accused person is likely to spend more time on remand than the eventual custodial sentence, if found guilty of the alleged offending.

This amendment seeks to ensure that remand is being used appropriately, rather than being the de facto sentence for an accused who a court would otherwise have been adjudged to deserve less time in custody, or no custodial sentence whatsoever.

New facts and circumstances

The Bill will amend the Bail Act to allow an accused person to make a second legally-represented bail application before a court without having to establish ‘new facts or circumstances’.

Under the current law, an accused who is refused bail following a legally represented application cannot make a further application for bail unless they satisfy the court that they have ‘new facts or circumstances’. This requirement ensures people who have had an opportunity to make an application prepared by a lawyer do not continue to make unmeritorious applications and overwhelm the system.

Legal stakeholders advised that lawyers are reluctant to represent a person at the first possible opportunity because of concern that it will mean the person will be excluded from making a better-prepared application in the days following. This means accused people who may have a good case for bail make self-represented applications, or do not apply at the first opportunity. This contributes to a high number of short remands in the system.

These brief remands are not only unnecessary and costly to the community – they are also enormously disruptive to the lives of accused people, particularly those with caring responsibilities, insecure work or insecure housing.

Giving accused people the safety net of a second represented application for bail when they have had more time to prepare will encourage legal representation at the earliest possible opportunity, preventing at least some proportion of short stays in remand. The amendment will only apply to the first two bail applications made to a court by an accused after being taken into custody. Following two legally represented applications, an accused person will still need to demonstrate new facts and circumstances to make a further application with legal representation.

Clarifying the Bail Act and fixing anomalies in application of bail tests

Finally, the Bill makes some procedural and technical changes to address gaps in the current legislation.

The Bill rectifies anomalies in the application of bail tests, by:

• ensuring those charged with serious historical offences are subject to the same tough bail tests as those charged with the equivalent contemporary offences;

• ensuring that consistent bail tests apply to accused people who offend further while subject to certain orders;

• extending the court’s power to allow an accused to go at large; and

• clarifying that ‘adjourned undertaking’ is not ‘serving a sentence’ to ensure reverse onus test are applied consistently and as intended.

The Bill also makes some simple but important improvements to the Act, including:

• adopting gender-neutral terms;

• updating the definition of ‘Aboriginal person’;

• replacing outdated terminology such as ‘surety’ with plain language definitions; and

• making it clear that the rules of evidence do not apply in a bail application.

Conclusion

Ensuring the safety of the community is a core concern of government. These reforms recognise that existing laws have failed to protect parts of our community, and we need to fix that. A person on remand has their life disrupted in ways that can entrench disadvantage and a pattern of contact with the criminal justice system. Remand should only be used where necessary – it is a key tool to help to ensure the safety of the community and the administration of justice. Where the accused poses an unacceptable risk if released on bail, it is appropriate that they be remanded. But the Bail Act can continue to prioritise community safety while ensuring that people are not unnecessarily exposed to harmful custodial episodes.

I wish to acknowledge the legal and community advocacy for these reforms, particularly that of the Aboriginal community. I would also like to again acknowledge the tragic events that shed light on the need for reform, as well as the continuing advocacy of the Aboriginal and Torres Strait Islander community.

I commend the Bill to the house.

James NEWBURY (Brighton) (10:38): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 30 August.