Changes to Victoria’s Bail Act 1977
Victoria’s bail laws are, without a doubt, the toughest in Australia. No one is more aware of that than our own experienced bail application specialists, it has become more and more difficult for us to get our clients bail, that is why we welcome the recent changes in August of 2023 to the Bail Act in Victoria.
In 2017 James Gargasoulas murdered six people and injured many others using his motor whilst on bail, as a consequence the Victorian Government changed the law making it more difficult for repeat offenders to get bail, which in theory sounded like a great idea and initially was thought to be an effective measure in protecting the wider community, but in reality lead to the targeting of many of the most vulnerable in our community, resulting them in being remanded for matters that would not ordinarily attract a term of imprisonment.
In his second reading speech, Mr Anthony Carbines stated:
“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.”
What does the Bail Amendment Bill 2023 do?
The recent Bail Amendment Bill 2023 (the Bill) proposes further changes to the Bail Act 1977, seeking to ensure 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 bill amends the Bail Act 1977 with consequential amendments to several other Acts to:
- Make changes to the tests applied and what bail decision makers must take into account in making determinations in relation to bail;
- Repeal 2 offences; and
- Address remand of those accused of relatively low-level offending and the particular impacts of the Bail Act 1977 on vulnerable cohorts including Aboriginal people and women (see the Explanatory Memorandum).
The Bill comes into operation on a day or days to be proclaimed; however, if a provision of the Bill does not come into operation before 25 March 2024, approximately 7 months after the Bill’s introduction into parliament, it comes into operation on that day.
The case of Ms Veronica Nelson
The proposed amendments to the Bail Act 1977 were sparked by findings into the death of Veronica Nelson delivered at the Coroners Court on Monday, 30 January 2023. Ms Veronica Nelson was a 37-year-old Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman.
Ms Nelson was due to appear at the Melbourne Magistrates Court after her arrest in December 2019. The Court, however, did not get to her case on 30 December and was subsequently stood over until 31 December 2019, when Ms Nelson made her own unrepresented application for bail, on the advice of a lawyer, to preserve her right to a legally represented bail application later. Bail was refused. Ms Nelson was required to show exceptional circumstances to justify a bail application because she was charged with breaching bail. She had also failed to appear in court on shoplifting offences and was accused of having committed a further similar offence.
Ms Nelson died alone in custody on 2 January 2020 from a rare gastrointestinal condition, suffering from opiate withdrawal and malnutrition while she was remanded in custody for a crime for which she would never have received a term of imprisonment. Her death was sadly found to be preventable.
As stated by Mr Carbines in his second speech:
The 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.
Summary of the Bail Amendment Bill 2023
| Repeal of Bail Act offences | The bill repeals two offences under the Bail Act:
The offence of failure to appear on bail will be retained. |
| Child bail reforms | The new Bill excludes children from the reverse onus bail presumption. There are exceptions to this for murder and other homicide offences so bail decisions relating to children will be solely based on the unacceptable risk test. As with adults, the reverse onus bail test will apply to children accused of terrorism offences, who pose a terrorism risk, or who have a terrorism record. Section 3B of the Bail Act 1977 is to be expanded to include:
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Aboriginal-specific considerations | Following consultation with Aboriginal communities s 3A of the act is to give greater guidance to the bail decision maker. The provision is to support the common law responsibility of bail decision makers to ensure that incarceration rates of Aboriginal people are not further compounded unless there is a good reason (HA (a pseudonym) [2021] VSCA 64). New s 3A requires consideration of:
S 3A also requires a bail decision maker 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. |
| Restricted remand for summary offending | The bill will prohibit remanding offenders for minor offences pursuant to the Summary Offences Act 1996. The bill will abolish the double uplift provision, and the test for bail will depend on the offence committed (for example, committing an offence on bail for certain offences will no longer amount to the exceptional circumstances test as it currently stands) The reforms make it clear that remand is not an option for these offences which will not attract imprisonment. Remand is, however, still available for serious summary offences of violent and sexual nature. Accused persons may, for minor offences, be placed on bail subject to conditions and face bail being revoked if conditions are not complied with. |
| Consideration of likelihood of custodial sentence | The bill updates s 3AAA(1), which will now require bail decision makers to consider when applying the reverse onus test/unacceptable risk test whether the accused is likely to be sentenced to a term of imprisonment. |
| New facts and circumstances | The new bill will amend the Bail Act to allow a legally represented person to make a second bail application without the need to establish new facts and circumstances. |
| Other changes | The bill rectifies anomalies in the application of bail tests by:
The Bill will also:
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