Tuesday, 17 October 2023
Bills
Bail Amendment Bill 2023
Bills
Bail Amendment Bill 2023
Council’s amendments
The SPEAKER (15:25): I have received a message from the Legislative Council agreeing to the Bail Amendment Bill 2023 with amendments.
Ordered that amendments be taken into consideration immediately.
Message from Council relating to following amendments considered:
1. Clause 1, page 2, lines 1 and 2, omit all words and expressions on these lines.
2. Clause 1, page 2, line 26, omit “bail.” and insert “bail; and”.
3. Clause 1, page 2, after line 26 insert –
“(e) to require a review of the operation of the amendments made by this Act.”.
4. Clause 6, lines 21 and 22, omit “4AA or 4AAB,” and insert “4AA,”.
5. Clause 8, lines 6 to 14, omit all words and expressions on these lines.
6. Clause 8, line 15, omit “(2)”.
7. Clause 13, lines 20 and 21, omit “whichever of section 4AA or 4AAB applies,” and insert “section 4AA,”.
8. Division heading preceding clause 16, omit “Bail tests that apply to children” and insert “Notes to heading to Schedule 1”.
9. Clause 16, omit this clause.
10. Clause 17, omit this clause.
11. Clause 18, omit this clause.
12. Clause 19, omit this clause.
13. Clause 20, omit this clause.
14. Clause 21, omit this clause.
15. Clause 22, omit this clause.
16. Clause 23, omit this clause.
17. Clause 24, line 24, omit “an adult” and insert “a person”.
18. Clause 24, lines 27 to 29, omit all words and expressions on these lines.
19. Clause 24, line 30, omit “3” and insert “2”.
20. Clause 24, line 31, omit “See – “ and insert ‘See section 4AA(2).”.’.
21. Clause 24, lines 32 and 33, omit all words and expressions on these lines.
22. Clause 25, line 6, omit “adult” and insert “accused”.
23. Clause 25, line 9, omit “adult” and insert “accused”.
24. Clause 26, line 25, omit “adult” and insert “accused”.
25. Clause 26, line 28, omit “person” and insert “accused”.
26. Clause 26, page 16, line 3, omit “adult” and insert “accused”.
27. Clause 26, page 16, line 6, omit “person” and insert “accused”.
28. Clause 30, page 18, Flow Chart 1, omit “Flow Chart 4” and insert “Flow Chart 3”.
29. Clause 30, page 18, Flow Chart 1, omit “Flow Chart 5” and insert “Flow Chart 4”.
30. Clause 30, page 19, line 3, omit “an adult” and insert “a person”.
31. Clause 30, page 19, heading to Flow Chart 2, omit “to adults”.
32. Clause 30, page 19, Flow Chart 2, omit “Flow Chart 4” (wherever occurring) and insert “Flow Chart 3”.
33. Clause 30, page 19, Flow Chart 2, omit “Flow Chart 5” and insert “Flow Chart 4”.
34. Clause 30, page 19, Flow Chart 2, omit “Flow Chart 6” (wherever occurring) and insert “Flow Chart 5”.
35. Clause 30, page 20, lines 1 to 4, omit all words and expressions on these lines.
36. Clause 30, page 20, Flow Chart 3, omit this flow chart.
37. Clause 30, page 21, line 1, omit “(5)” and insert “(4)”.
38. Clause 30, page 21, line 1, omit “4” and insert “3”.
39. Clause 30, page 21, heading to Flow Chart 4, omit “4” and insert “3”.
40. Clause 30, page 22, line 1, omit “(6)” and insert “(5)”.
41. Clause 30, page 22, line 1, omit “5” and insert “4”.
42. Clause 30, page 22, heading to Flow Chart 5, omit “5” and insert “4”.
43. Clause 30, page 23, line 1, omit “(7)” and insert “(6)”.
44. Clause 30, page 23, line 1, omit “6” and insert “5”.
45. Clause 30, page 23, heading to Flow Chart 6, omit “6” and insert “5”.
NEW CLAUSE
46. Insert the following New Clause to follow clause 116 –
‘116A New section 32C inserted
After section 32B of the Principal Act insert –
“32C Review of amendments made by Bail Amendment Act 2023
(1) The Attorney-General must cause a review to be conducted of the operation of the amendments made to this Act by the Bail Amendment Act 2023.
(2) The review must be commenced no later than 2 years after the commencement of the Bail Amendment Act 2023.
(3) The review must be completed no later than 6 months after it commences.
(4) The Attorney-General must cause a copy of the review to be laid before each House of the Parliament no later than 14 sitting days after receiving it.”.’.
47. Clause 117, line 11, omit all words and expressions on this line.
That the amendments be agreed to.
Two substantive house amendments were moved and adopted in the other place. A house amendment was passed to remove the relevant provisions to repeal the reverse onus test for young offenders for all but two of the most serious offences – terrorism and homicide-related offences. This amendment preserves the status quo in our approach to child bail and will not see children facing any more onerous bail tests than what currently apply. The Attorney-General has been clear about the reasons why we removed this from the bill and equally clear that we are still pursuing the reforms but are now doing so as part of the broader youth justice reforms.
We know that children are some of the most, if not the most, vulnerable cohorts within our justice system. We are not seeking to weaken our position, but we are creating a bail system that ensures remand is a last resort for children. We have paused the youth bail reforms and moved them to the broader youth justice package, which is on track to be introduced into the Parliament early next year. This is about looking at youth crime more broadly and ensuring that our bail laws coincide with the best approach possible to address youth offending. We know that youth crime is a result of a complex web of circumstances and often disadvantage and trauma, and we want to make sure that community and justice service providers are part of our approach to addressing this.
We are not going to buy into a false narrative that this is a backflip in response to a youth violence crisis. As the Attorney-General has clearly said, what we are seeing is a small number of young people committing serious offences and an even smaller number committing crimes for the first time. It is not accurate to describe this as a youth crime crisis. However, the government understands that we have an obligation to the community to ensure that our reforms are considerate of the recent high-profile traumatic cases that have involved young offenders. We completely recognise that for those who have been the victims of any crime, including those committed by children, it is absolutely a crisis in their lives, and I am not for a second undermining how traumatic and horrific this can be. This is why we want to ensure there is a comprehensive approach to addressing youth crime and why our Minister for Youth Justice and Attorney-General are actively progressing reforms to this end, and I look forward to seeing those reforms introduced into Parliament early next year.
While reforms to reverse onus testing specifically for child applicants for bail are paused, it is important to acknowledge that child applicants will still benefit from many of the changes included in the Bail Amendment Bill 2023. Similar to adults, children will no longer face uplift bail tests for repeat low-level, non-violent offending, reducing the risk of unnecessary remand where there may not be a risk to community safety. We have also expanded the specific considerations that child bail decisionmakers must take into account when determining if a child applicant should be granted bail. These include consideration of the importance of supporting a child to engage in education, work or training with minimal disturbances or interruptions and of the child’s personal characteristics and history, including any experiences of abuse, trauma, out-of-home care or involvement with child protection, as well as 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 child protection and children from culturally and linguistically diverse backgrounds.
Finally, the government has agreed to include a statutory review provision in the bill, with agreement that the review be conducted two years from when the legislation commences in March 2024. Regardless of any legislated requirement, the government fully intends to monitor these reforms on an ongoing basis to understand whether the provisions are operating as intended, and we will be working closely with stakeholders to ensure this can be carried out.
Michael O’BRIEN (Malvern) (15:31): When the government first floated bail reform, the opposition said that we were quite willing to work constructively with the government, and to some extent in this bill we have. There are aspects of this bill which the opposition does support. There are aspects of the amendments which are currently before the house which in fact the opposition initiated.
The statutory review of these bail changes was not an idea or an initiative of the government, it was an idea of the opposition. I appreciate the fact that in the other place, where the government does not entirely have the numbers, the government realised that it was important that some substantial changes to bail laws be reviewed, because we know that some aspects of this bill are undoing changes that this current Labor government made a few years ago. By that very nature we know that the government does not always get it right and the Parliament does not always get it right, and sometimes the courts interpret legislation in a way which the Parliament did not expect. When you are dealing with an issue as sensitive and as important to community safety as bail laws, it is absolutely essential that there should be a built-in statutory review, and that statutory review should be tabled in the Parliament so that the Parliament and, through us, the public are aware of what that review means. It is disappointing that when we put that to the government initially in this place the government did not accept those amendments. But the iron law of political arithmetic in the upper house forced the government to accept the statutory review, so we do welcome that.
I should also say there are aspects of this bill which we do not support, and one which I want to place on the record briefly is that this government has decided to abolish the offence of committing an indictable offence whilst on bail. I think that is a very retrograde step, and that will put Victorians at risk. I say to the government: this is on your head – through you, Deputy Speaker. This is on your head as the government. Against the views of many who work in the criminal justice system, who understand the risks that this measure is going to pose, the government has decided to say that the offence of committing an indictable offence whilst on bail should not be an offence anymore. That is what is contained in this bill. Let me explain to the house why that matters. It is not simply another offence. What it means is you are charged with an offence, you are given the privilege of bail and then you abuse that privilege by committing a serious offence. That is what an indictable offence is: it is a serious offence. If you abuse that privilege by committing a serious offence, under this change you can face the same weak test that let you get bail in the first place.
Our view and the view of the Police Association Victoria is that that is wrong and that if you abuse the privilege of bail once, you should face a tougher test to get bail again. I think if you asked many Victorians around their dinner tables at home ‘Do you think it’s fair that if somebody is offered bail, takes that up and then goes and commits a serious offence, they should face a tougher test to get bail again?’ most people would give you a head nod. Most people would say yes. But this government thinks it knows better. This government has decided to abolish the offence of committing an indictable offence whilst on bail, which means that people can be charged with an offence, get bail, be charged with an offence, get bail, be charged with an offence and get bail again and again and again, perpetuating the cycle with zero consequences.
How will this keep Victorians safe? The answer is it will not. So I want to be very, very clear: while the opposition support many measures in this bail bill, we do not support that measure. The consequences of that for the community safety of Victorians is entirely on the political heads of the Labor government. I hope that our concerns prove to be misplaced, but I am pretty sure they are not and they will not be. When the chickens come home to roost, I look forward to members on the other side explaining to their communities why they made this change.
In relation to youth bail reforms I am very pleased that the government have agreed they got it wrong in the bill initially, because what the government had proposed in this bill initially, and what the government voted on when it went through this place, was to change the tests for youth bail. In doing so the government would have said that a young person, somebody under 18 – so they could be 17½ – charged with a very serious offence would face the weakest test to get bail. Just to be clear, there are three tests for bail at the moment: there is the lower test, the medium test and the high test. The opposition does not believe that a young person charged with a very serious offence – such as, for example, aggravated burglary or rape or aggravated carjacking or armed robbery, a serious offence like that – should face the weakest test for bail. We believe that serious offences like that should face a higher test. We did not propose the highest, the toughest, test; we thought that for a young person maybe the middle test is the way to go. But this government pushed this bill through the Legislative Assembly, ignored our amendments, and said, ‘No, no. We know best. Yes, let’s let young people charged with aggravated burglary, aggravated carjacking, rape, sexual penetration of a child under 12 or armed robbery face the weakest test for bail.’
In between the bill going through this place and being considered in the other place our TVs and our newspapers were filled with some horrific reports of real-life incidents involving young offenders. Can I make this point: for every person who says ‘Well, young offenders, we need to look after them’ – I accept that we want to get them on the right track, but can we not lose sight of the fact that the cohort most likely to be victims at the hands of youth offenders are youth. I do not hear a lot of concern for the victims of young offenders, who are overwhelmingly young people themselves. They deserve to be protected. They deserve to be safe.
It is about getting the balance right. The government got the balance wrong in this bill when they rammed it through this house with their numbers. I do not think they were particularly worried about losing a vote in the upper house when it came to youth bail measures, because there are sufficient ideological fellow travellers of this Labor government in the other place; they would have got the numbers through. But I think they realised, when those horrific reports came out during that period between the houses – that horrific abduction, armed robbery and bashing outside Glen Eira College and reports in my own electorate of students being robbed and bashed on Glenferrie Road and students being robbed and bashed at Chadstone shopping centre; my colleague the member for Brighton and others and I have all got stories – the idea that you say to young offenders ‘You can commit some of the most serious offences our statute books know and you will face the lowest test we have for bail’ makes no sense and puts us at risk.
I welcome the fact that the government through these amendments is withdrawing all those changes to youth bail. The government is trying to save face; I understand that. They claim it is not a backflip.
James Newbury: What do you call it?
Michael O’BRIEN: Well, we will see. If the government comes back with exactly the same dumb amendments next year, then I will say, ‘Okay, well, they haven’t backflipped’.
James Newbury: ‘They haven’t learned.’
Michael O’BRIEN: ‘They haven’t learned’ – correct, member for Brighton – ‘they haven’t learned.’ We have offered to work with the government. We did not propose ‘hang ’em high’ laws, we said something sensible. If a young person, a 17-year-old, a 16-year-old, is charged with a very serious offence – rape, aggravated burglary, aggravated carjacking, sexual penetration of a child under 12 – at least have the medium-tier test for bail. Now, it remains to be seen whether the government wants to work constructively with this side of the house when it comes to youth bail. We will probably only know that when we see the bill that comes back next year, but at least for the next few months until that youth offences bill comes back I think Victorians will be safer than they would have been had these amendments not been put through.
So with this bill and in fact these amendments there is the good, the bad and the ugly. There are some aspects of this we do support, because we do not want to see people held on remand for offences for which they would not go to jail even if convicted. That makes no sense to anybody. And we agree the way in which the courts have interpreted and applied previous bail amendments of this Parliament has led to unintended consequences, so it was actually quite right that as a Parliament we looked to try and resolve those. That is why I have offered to and to some extent have worked with the Attorney-General to try and get some of these bail amendments agreed on a bipartisan basis. But we do think the government has got it wrong in some areas. On youth bail they have got it wrong, and they are now trying to withdraw those aspects and reconsider them – and I encourage the government to seriously reconsider them.
To conclude my remarks, one area where the government has desperately got it wrong and I think will be putting the community at risk is abolishing the offence of committing an indictable offence while on bail. The Police Association Victoria warned the government back in March that removing this offence would put community safety at risk. This government thinks it knows better. I do not think it does, and as a consequence the government will bear full responsibility for any reduction in community safety as a result of that change.
Nick STAIKOS (Bentleigh) (15:42): I am going to make a very brief statement on this matter. I agree with part of what the member for Malvern just said, because at the end of the day we all want the community to be safe. I keep track of the crime stats in my own electorate. I am not oblivious to the fact that there has been a spike in crime. We see it anecdotally and we see it statistically. The member for Malvern referred to that ugly incident in Glen Huntly. In the wake of that incident I convened a meeting of all of the secondary school principals of my electorate and senior police from both Glen Eira and Kingston, and no doubt there are concerns that school principals hold on behalf of their students. But I would point out a couple of things if I can make two contributions on this matter.
The first is: this government does take community safety very seriously. That is why under this government Victoria has the largest police force in the country. We have actually recruited record numbers of police in the time that we have been in government, and I have absolute faith in our dedicated police that just like they dealt with the last time back in 2017 when we had a spike in crime they are dealing with this as well. The second thing I would say: there has been a troubling incidence of youth crime. Kids of 13, 14, 15, 16 have been committing crimes, and because we have things like CCTV and social media we can actually see it in a more confronting way now. But what I would contribute to this point is that while I am concerned about community safety just like any other resident of my electorate, what I am more concerned about is that a young 13-year-old offender who has many, many years of life ahead of them does not become an adult offender. We need to ensure that these young people who are committing unacceptable crimes now do not continue to commit these crimes into their adult years, because things just get worse if that happens. The community loses out. The community is not more safe if that 13-year-old as a 21-year-old is committing these same crimes, because they will not be committing the same crimes, they will be committing worse crimes. We do need to place an emphasis on ensuring that we are turning young offenders into good, decent adults.
James NEWBURY (Brighton) (15:45): I just intend to make a few brief comments on the amendments. But first I acknowledge the work of the Shadow Attorney-General who, throughout this process with the bill, has led and has proposed a number of amendments to the government which they have picked up on. They were proposals that were well meaning, they were right, and it was good to see that the government has picked those up.
In short, the government got the balance wrong on what they were proposing in this bill, especially in relation to youth bail. In my community, Brighton was not even on the data map when it came to aggravated burglaries. We are now the number one suburb in inner Melbourne for aggravated burglaries. The Shadow Attorney made the point that many of these crimes committed by young people most affect young people. I speak very regularly, because of the incidence in my community, to the young children and often mothers who are confronted with these criminals in their homes. Oftentimes these families will walk downstairs to find home invaders in their home – some of the most shocking crimes you can possibly imagine. In one circumstance a young guy went out to get breakfast, went out to get his Weet-Bix in the morning, and two fellows were there with machetes to meet him in his kitchen. So it is important that when we set the laws of this state we do it in a way that ensures people who are committing the most serious crimes have consequences for their actions. What concerns me is not that the government have pulled back from what they were wrongly proposing; what I am concerned about is the word that was used at the time, which was that the government was just ‘pausing’ what they were proposing – pausing.
They got the balance wrong, and I would say to the government: work with the opposition through the Shadow Attorney, who has from the get-go looked at this bill, spoken with the government and offered solutions to this bill. I was with him in the government briefings where he proposed these reforms in a spirit of bipartisanship. I would call on the government to look at what they have paused, consider the impact, consider what police have said will be the impact of implementing these changes and do the right thing for Victorians and for Victorian victims.
Tim READ (Brunswick) (15:48): I will start by saying that the Greens oppose the particular amendment which, had the amendment not been made, would have allowed the repeal of the reverse onus test in the Bail Act 1977. In other words, we support removing the reverse onus test in the Bail Act. However, we also support the amendment which introduces a review to the legislation. Since we are voting on these together, we will oppose the house amendments as I understand. We are voting on them as a bloc. However, it is important to make the point that one of the best things in this bail reform was removing the reverse onus test for children. Given that that has now been pulled out of the bail reform bill, the best bit has gone. Therefore the Greens will oppose the house amendments. It is critical that we oppose these, because the most common cause for particularly younger children to be in prison is to be on remand because they were denied bail. One of the commonest causes for that is their failure to pass the reverse onus test. Applying this stringent criterion for bail on young accused has led to the unnecessary imprisonment of hundreds of teenagers in Victoria.
Therefore we are undoing the most important criminal justice reform before it has even had a chance to happen. The government’s stated reason for this is that they do not want to fuel a law and order debate that is not necessary. I understand their concerns, but that is going to be the same situation next year. They are planning to apparently bring in this reform next year. The political situation is not going to be any different. The government did not need the assistance of the Liberals to pass the full bail bill unamended in the other place – it does not require the Liberals’ vote to achieve this. The numbers will not have changed in the other place next year. The political situation will not have changed, because the conservatives will always whip up a law and order debate. The government’s best chance to bring in this critical justice reform, which will reduce the number of children in prison, is to do it now. That is why the Greens will oppose the amendments.
Assembly divided on motion:
Ayes (79): Juliana Addison, Jacinta Allan, Brad Battin, Jade Benham, Roma Britnell, Colin Brooks, Tim Bull, Josh Bull, Martin Cameron, Anthony Carbines, Ben Carroll, Darren Cheeseman, Anthony Cianflone, Annabelle Cleeland, Sarah Connolly, Chris Couzens, Chris Crewther, Jordan Crugnale, Lily D’Ambrosio, Steve Dimopoulos, Paul Edbrooke, Wayne Farnham, Matt Fregon, Ella George, Luba Grigorovitch, Sam Groth, Matthew Guy, Katie Hall, Paul Hamer, Martha Haylett, Mathew Hilakari, David Hodgett, Melissa Horne, Natalie Hutchins, Lauren Kathage, Emma Kealy, Sonya Kilkenny, Nathan Lambert, Gary Maas, Alison Marchant, Kathleen Matthews-Ward, Tim McCurdy, Steve McGhie, Cindy McLeish, Paul Mercurio, John Mullahy, James Newbury, Danny O’Brien, Michael O’Brien, Kim O’Keeffe, Tim Pallas, Danny Pearson, John Pesutto, Pauline Richards, Tim Richardson, Richard Riordan, Brad Rowswell, Michaela Settle, David Southwick, Ros Spence, Nick Staikos, Natalie Suleyman, Meng Heang Tak, Jackson Taylor, Nina Taylor, Kat Theophanous, Mary-Anne Thomas, Bill Tilley, Bridget Vallence, Emma Vulin, Peter Walsh, Iwan Walters, Vicki Ward, Kim Wells, Nicole Werner, Dylan Wight, Gabrielle Williams, Jess Wilson, Belinda Wilson
Noes (4): Gabrielle de Vietri, Sam Hibbins, Tim Read, Ellen Sandell
Motion agreed to.
The SPEAKER: A message will now be sent to the Legislative Council informing them of the house’s decision.