Kim O’KEEFFE (Shepparton) (18:21): I rise to speak on the Bail Amendment Bill 2023. The bill seeks to amend the Bail Act 1977 and to make consequential amendments to create a more proportional bail response to low-level offending by refining the more onerous bail test 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.
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 disproportionately affects Aboriginal people, women, children and people experiencing poverty. I acknowledge the tragic case of Veronica Nelson, who died in 2020, and I express my sincere sympathy to her family, friends and community. At the time of her death Veronica was on remand, having been refused bail for a shop theft related offence. The coronial inquest into Veronica’s death found that Victoria’s bail system had a discriminatory impact on Aboriginal people that resulted in disproportionate rates of remand, with the most significant impact being on Aboriginal women.
The bill makes changes to the tests that are to be applied in making determinations in relation to bail, including by providing that certain offences are no longer to be schedule 2 offences to which certain two-step tests apply, and providing that bail is not to be refused in respect of certain offences, subject to exceptions; and providing that two-step tests apply to children in fewer circumstances. The bill makes changes in relation to what bail decision makers must take into account, including by reforming the provisions about what a bail decision maker must take into account when making a determination that relates to an Aboriginal person or a child. It repeals the offence of contravening certain conditions and the offence of committing an indictable offence whilst on bail and makes amendments to clarify, modernise and otherwise improve the act. It provides for sureties to be referred to as bail guarantees and bail guarantors, replaces gendered language, regularises references to bail undertakings and expands the circumstances in which a court must hear a further application for bail.
The amendments in the bill that is before us seek to address the remand of those accused of relatively low-level offending and particular impacts of the Bail Act 1977 on vulnerable groups in the community, such as, for example, as we have said, Aboriginal people and women. Currently we have people in remand who are waiting for their cases to be determined, and in many cases the time in remand has been longer than their sentence, or they may not have been sentenced at all. This is clogging up the system, is costly and is one of the most significant areas being addressed in this bill.
The amendments in this bill refine the bail test to focus on serious alleged offending and serious risks, and they are intended to reduce the over-representation of vulnerable groups in the justice system, as already highlighted. The bill abolishes the double uplift provision which in the past had made it more difficult for people who had committed an offence whilst on bail to be granted bail for a new offence and repeals the bail offences breaching bail conditions and committing further offences while on bail, which have been shown to disproportionately impact women, children and Aboriginal people.
The bill introduces remand prohibited offences which effectively means that people will not be remanded in custody for offences that are unlikely to result in a prison sentence. It changes the rules on making a second bail application so that individuals do not need to prove new facts and circumstances if their first application is denied. It implements a presumption of bail for children with exceptions for certain crimes like terrorism and homicide offences. It requires bail decision makers to record how they have considered specific, self-determined Aboriginal considerations when making a decision about bail for an Aboriginal person.
The government last introduced changes to Victoria’s bail laws in 2017 following the tragic events that occurred in the CBD of Melbourne on 20 January of that particular year, when James Gargasoulas murdered six people and injured many others on the streets of Melbourne. At the time of Mr Gargasoulas’s actions in the CBD, he was on bail, and this was not the first time a violent crime had undermined the public confidence of Victorians in the state’s bail system. The Honourable Paul Coghlan QC was asked by the government to conduct an urgent review into the state’s bail laws with the primary aim of increasing community safety and restoring Victorians’ trust in the state’s bail and justice systems.
At the time of Mr Coghlan’s review the government committed to implementing all of the recommendations in his first report. Some of the changes that were made in 2018 had a disproportionate impact on people who were already experiencing significant disadvantage, in particular Aboriginal people, people with disabilities, children and women. This bill refines the bail test to focus on serious alleged offending and serious risk; reduce over-representation of vulnerable groups in Victoria’s justice system, including women, Aboriginal people and children; and balance appropriately the response of the system to accused people with the rights and protections of victim-survivors and the community. Remand custody is designed to keep Victorians safe. It is not to further punish the most vulnerable members of our community. We must ensure that the bail conditions are appropriate to the crime.
In 2018 Shepparton opened the Koori Court, which has provided local Indigenous people who have offended with a comfortable environment, and offenders are supported by their elders and provided with wraparound services. The objective is to reduce reoffending and the cycle of imprisonment. It is one example of trying to address the increasing level of crime. Like many communities, we have rising numbers of criminal offences and victims of crime and an exhausted police workforce.
Today we heard about the addition of amendments to the bill put forward by the member for Malvern, including a two-year review to ensure that in two years time these changes have been effective and that we see the much-needed positive change in bail reform.