Bail Amendment (Stage One) Bill 2017 Second Reading

7 Jun 2017

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I rise to speak on the Bail Amendment (Stage One) Bill 2017. This bill aims to implement many of the recommendations of the Bail Review: First Advice to the Victorian Government. The review was conducted by the Honourable Paul Coghlan, QC, following the tragic events in January in Bourke Street. This bill also implements some recommendations from the Royal Commission into Family Violence. The Greens will not be opposing the bill in this house, though we will be reserving our right to put forward amendments in the other place.

We welcome the changes in relation to family violence and the implementation of the recommendations of the Royal Commission into Family Violence, requiring consideration of family violence orders and risk in bail decisions. We also support the separation of compelling reason and exceptional circumstances offences into different schedules for ease of understanding. We do have a number of concerns about this bill, and we certainly strongly oppose the government’s changing of the show-cause test in relation to bail hearings to a ‘show compelling reason’ test.

In fact this change was not actually recommended by Paul Coghlan in his review and goes against his recommendation that the show-cause test should simply be reworded to ‘show good reason’ to make it more clear. He did not actually deem it necessary to create a higher test, and we have not had sufficient reason put forward by the government to actually change that test.

When Paul Coghlan conducted his review he did not find that there was any such problem to justify the higher test being created. This change, introducing the higher threshold, will eventually just lead to more people being denied bail and placed on remand when they are not an unacceptable risk to the community. They will be put in already overcrowded jails where they will be left waiting too long before their matter actually comes to trial. These people may very well not be an unacceptable risk and should be granted bail.

We note that a number of stakeholders have also raised some other concerns and that other offences have been added to the exceptional circumstances category, which is actually quite broad and does not take into account the potential for a lower level offender being involved. That also would apply to someone who is not an unacceptable risk to the community.

The Law Institute of Victoria (LIV) have raised the issue that a person charged with culpable driving causing death, which is usually proceeded with by way of summons, is now a category 2 offence under the bill and so could be more easily refused bail when there is no unacceptable risk. LIV and Liberty Victoria have also argued that the bill leads to persons accused of such offences being refused bail without that link to risk, and in his review Mr Coghlan did say that there would still be a two-stage process, even with the reverse onus test. But also he did state that section 4 of the Bail Act 1977 should be amended so that it provides that in applying the unacceptable risk, exceptional circumstances and show good reason tests, a bail decision-maker must take into account more detailed factors. Those factors include the nature and seriousness of the offence, including whether or not it is a serious example of the offence; any special vulnerability of the accused, including by reason of youth, being an Aboriginal person, ill health, cognitive impairment, intellectual disability or mental health; and the availability of treatment and support services. Those factors also include the length of time the accused is likely to spend in custody if bail is refused and the likely sentence, should the accused be found guilty of the offence charged, as well as existing factors in the act such as the accused’s criminal history and the strength of the prosecution’s case.

We also have concerns around funding with these changes to bail. The government will need to fund more resources for the courts and provide additional judicial officers so that people are not left on remand for long periods. We have been advised that people could still be left without a trial, waiting not just several months but several years before a trial happens. This is completely unacceptable. Greater funding and expansion of remand facilities are going to be needed in conjunction with more drug and alcohol treatment and mental health and other rehabilitation programs.

It should be noted as well that in his second advice to the government Mr Coghlan said that any reforms to the Bail Act 1977 arising from his review were likely to increase the number of people on remand. To help counter this increase, in the second advice Mr Coghlan provided, which this bill does not deal with, he made further recommendations, such as removing minor offences from the bail and remand system, because he finds it untenable to remand more and more people without examining whether the right people are being held on remand. The proposed notice of charge process aims to remove those accused of minor non-violent offences from the bail and remand system and encourage more of these offences being dealt with in the accused’s absence. He also recommends expanding the intensive bail support programs for adults and children in the courts, such as the court integrated services program. We will certainly be urging the government to implement these reforms as soon as possible.

As I said, the Greens will not be opposing this bill. However, we do have a number of concerns, as I have just outlined, and we will be reserving our right to move amendments in the upper house.

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