Wednesday, 30 August 2023

Bail Amendment Bill 2023

Second reading

Debate resumed on motion of Anthony Carbines:

That this bill be now read a second time.

Michael O’BRIEN (Malvern) (10:40): It is a pleasure to rise to speak on the Bail Amendment Bill 2023. This is an important bill for the Parliament to consider, because it deals with two – and the very concept of bail deals with two – conflicting principles and values we have in our justice system. The first is the presumption of innocence, and that is that somebody who is accused of a crime, somebody who is charged with a crime, prima facie has the right to be treated as innocent unless and until they are proven guilty in a court of law. To have somebody remanded in custody prior to their day in court is to some extent a denial of that principle of presumption of innocence. On the other hand there is the competing interest of community safety and protecting the interests of the community in being safe from people who have been charged with, in some cases, very serious crimes and who in the views of bail decision makers pose a significant risk of perpetrating further harm in the community should they be released in the community ahead of their trial. This is not an easy balance to get right, and that is reflected in the fact that every government I think – certainly in my experience in this place, every government – has made amendments to the Bail Act 1977, and this government is no different. In fact what we see today is in this bill is that the government is seeking to undo some of the changes it itself brought in in 2017 and in 2018 in response to the Bourke Street tragedy.

I think when you look at some of the figures, there is no question that we do need to reform bail at the moment. The number of unsentenced prisoners – prisoners held on remand in Victorian prisons – has gone up significantly over the last decade. There were 956 unsentenced prisoners in 2013. This rose to 2706 in 2018. It reached a peak of 3182 in 2021, and the most recent figures have it at 2763 in 2022. Those figures are from the Sentencing Advisory Council. I am also grateful to the parliamentary library, which does a great job here. They have done a very good bill brief on this bill, and they note that a Sentencing Advisory Council report from 2020:

… found that 20 per cent of all prison sentences were time served prison sentences … In 2014, this same group only made up one in nine of offenders …

who received a prison sentence.

The relevance of that statistic is that one in five prison sentences handed down are effectively saying, ‘Well, you’ve done so much time on remand that we’re not going to further punish you. What you’ve done is deserving of a prison sentence, but you’ve already served it’. Of course if somebody is sentenced to prison for a time less than they have served on remand, there is an inherent injustice in that, and of course if somebody is found not guilty of the crime with which they are charged, yet they have been held on remand in jail, deprived of their liberties, there is a further inherent injustice in that. So I think when we have seen the explosion in the number of people held on remand in Victoria over the last decade, it certainly does demonstrate a case for change.

We have also had the tragic incident of the death of Veronica Nelson in custody. Veronica Nelson was arrested in December 2019 on suspicion of shoplifting and was taken to a nearby police station. She was questioned, she was charged and she was later taken before a magistrate, where she was refused bail on grounds that there was an unacceptable risk that she might commit a further offence while on bail as she had previously failed to answer bail. I do not have the time, unfortunately, to go through what happened to Veronica Nelson in great detail or the coroner’s inquest, but it is harrowing reading. The coronial inquest report is harrowing reading. Frankly, whether Veronica Nelson should or should not have been on remand, the way she was treated in custody was absolutely appalling. I note that because there is nothing inherent in this bill today that would prevent people who are held on remand from being treated appallingly in the way that Veronica Nelson was treated. The onus is on the government. Do not just say, ‘Well, we’re changing the bail laws, therefore our job is done.’ The job is also to make sure that people who are on remand, even for the best of reasons, are treated humanely. Nobody should press an intercom button 49 times to ask for help and be ignored in the way that Veronica Nelson was.

Given the tragic antecedents of where we are, to bring this bill forward is very important, and the opposition has taken the position that we wish to be constructive. We know that almost the one thing you can guarantee is that, when you make changes to the bail laws, they will not be perfect. We understand that. This bill is not necessarily something we would have written exactly ourselves. I can indicate that we have some concerns and will be moving amendments, and I will refer to those shortly. But on the whole the opposition does not intend to oppose this bill, because we do believe that this bill provides a step forward. There are some sensible changes in it. There are some changes that we believe could be better, could be safer, so we will be moving amendments to reflect that, because community safety is and must be a paramount concern.

We have always proposed to be constructive throughout this debate, and we will be moving those amendments in that same constructive attitude. We would like the government to seriously consider our amendments in this place and in the other place, seriously consider how these amendments can improve this bill, because we all want to see a Victoria that is safer. We all want to see a Victoria where presumptions of innocence are respected as well. The question is: does this bill get the balance right? We think it is not quite right. It is not a bad effort, and I should thank the Attorney-General. Usually legislative processes are quite combative in this place, but on this particular issue the Attorney-General and I have had discussions over a period of time in relation to this process, and I am grateful to her and to her office for facilitating that. As I say, this bill does not reflect necessarily everything that I would do if I were in her shoes, but I think it is a better bill for having had some constructive discussion along the way.

What does the bill seek to do? The bill seeks to change the tests that are applied in relation to determining bail. Perhaps just at the outset, for those who might be watching online and have no idea how our bail system works, there are at the moment three tests, effectively, for bail. For the lowest level of offences there is a test which is known as the ‘unacceptable risk’ test. The onus is on the prosecution to demonstrate that the person seeking bail would pose an unacceptable risk to the community if they were given bail. The mid-level test is the ‘show compelling reason’ test. This is a test where the onus is on the applicant for bail; they need to show a compelling reason why they should be granted bail. Then the third test, the toughest test, is the ‘show exceptional circumstances’ test. Again the onus is on the person applying for bail, and they need to show that exceptional circumstances apply to warrant them receiving bail. What this bill seeks to do is provide that certain offences will no longer be in schedule 2, which means that the show compelling reason test will no longer apply. It seeks to provide that bail is not to be refused in respect of certain offences, effectively saying for all these types of offences bail is pretty much automatic, and provide that the two-step test applies to children in fewer circumstances.

So the two-step test is either the exceptional circumstances or the show compelling reason test plus the general unacceptable risk test. The bill makes changes to what a bail decision maker must take into account when dealing with an Aboriginal person or a child. The bill seeks to repeal the offence of contravening certain conduct conditions while on bail. It seeks to repeal the offence of committing an indictable offence while on bail. I should say that is an issue that the opposition is concerned about, and it will be reflected in our amendments. It makes various changes to update language used in the act, and it also expands the circumstances in which a court must hear a further application for bail.

We perhaps should not be surprised that we have seen a significant increase in the number of people held on remand. When the Andrews government introduced changes to bail after the Bourke Street tragedy, the then Attorney-General Martin Pakula said:

We’re making it harder than ever to get bail in Victoria …

That was in the media release. That was a selling point for the government about its changes to bail – ‘We’re making it harder than ever to get bail in Victoria’ – so the government got what it wanted. It wanted to make it really hard to get bail, and that is what it did. The trouble is some people were denied bail who really should have been allowed it. People who did not pose a risk to the community, people who did not pose a risk to themselves were caught up in this. This is why we are back here today. I do not say that to score a political point. I say it simply to acknowledge that the government deliberately tightened bail significantly in response to Bourke Street, and sometimes changes have unintended consequences. I do not think for a second the government intended to have people accused of shop stealing being held in custody for weeks or months. I do not think that was the intention, but that is the way the legal changes have been applied.

It is for that reason that we will be moving amendments to require a statutory review of the changes in this bill after two years, because you can be damn sure this bill is not perfect. You can be damn sure this bill will not quite get it right. The government did not get in right 2017 or 2018. You can say the coalition did not get it quite right, perfectly right, in our changes in 2013. So if we know we are not going to get it right, let us build in a statutory review so we can properly assess how these changes have panned out and if they have had the desired effect, the intended effect, or if they have had further unintended consequences, as did previous failed changes. This might be a useful time – to aid the house – for me to circulate the amendments that the opposition will be moving, so under standing orders I wish to advise the house of amendments to this bill and request that they be circulated.

Amendments circulated under standing orders.

Michael O’BRIEN: In terms of this bill, I will take you through some of the key changes that are made, and I will flag where we think amendments should be put in place. Now under this bill many offences in the Summary Offences Act 1966 will automatically lead to bail being granted, so there will not be a debate and there will not be an argument. If it is a particular offence in the Summary Offences Act, with certain exceptions, bail is automatic, and that seems to be quite reasonable. If we are talking about relatively low-level offences, which do not pose a material risk to the safety of the community, then people should have a right to bail, given as I said, our justice system is founded on the principle of the presumption of innocence. There are some exceptions. The exceptions would be if it is one of the exceptions listed in schedule 3: if the person has a terrorism record, if the bail decision maker is a court and the court has determined there is a risk the person will commit a terrorism or a foreign incursion offence or if the person was previously granted bail in respect of offences of which the person is accused and that bail was subsequently revoked. So they are the exceptions. But otherwise, if it is a summary offence, bail is automatic. I should just indicate the nature of the schedule 3 exceptions where bail is not automatic for a summary offence: sexual exposure, common assault, aggravated assault, distribution of intimate image, public display of Nazi symbol, assaulting emergency workers or custodial officers et cetera, assaulting registered health practitioners, harassing witnesses et cetera.

Division 3 of the bill makes changes to the operation of the unacceptable risk test, and it clarifies that this test must be applied if the applicant has satisfied either the exceptional circumstances test or the compelling reason test, so a schedule 1 or a schedule 2 offence, or if it is the sole bail test. And it was clarified to me that when considering the unacceptable risk test, it does not require there to be a risk to a particular individual. It may be a risk to any person in the community. I note an article in the Age from 16 August this year, and it quotes the Attorney-General Jaclyn Symes:

“We don’t want a situation where you can just go and hit the same small business 20 times in shoplifting and not be remanded. You are not necessarily posing an unacceptable risk to hurting someone, but you are posing an unacceptable risk to that small business, for instance,” Symes said.

So we do think it is important that the notion of unacceptable risk not be to a particular individual. If a person is going to continually break the law and put the broader community at risk, then we believe it is important that that be the primary consideration under that unacceptable risk test.

The bill would repeal section 4E(1)(a)(ii) of the current Bail Act. In doing so it excludes 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. So in other words, at the moment you can be held on remand if the court believes that there is an unacceptable risk you will conduct further offending while on bail. This bill seeks to say that really does not apply if that further offending would not endanger the safety or welfare of any other person. So I am actually interested in how that provision of the bill tallies with the Attorney’s comments that I have just read into the record, because the Attorney in those comments seems to be saying, ‘Well, if you go and hit the same small business 20 times with shoplifting, then clearly that would be covered’. But this bill seems to be suggesting that if your further offending does not endanger the safety or welfare of any other person, and low-level shop theft was the example that was given, then bail would still be available, so that might be something that government members can assist with.

Division 4 changes the tests that apply to children. The bill differentiates between adults and children for the first time. Previously children were treated exactly the same as adults in relation to tests for bail. The effect of the change is to remove the two-step test for children except for specified offences. So where a child is accused of murder, attempted murder or a terrorism-related offence or has previously been convicted of a terrorism-related offence, the exceptional circumstances test will continue to apply plus the unreasonable risk test, which is always there. If the child is charged with an offence that is not on schedule 1 or schedule 2 but has a terrorism record or poses a terrorism risk, then the show compelling reason test will apply and an unacceptable risk test. If a child is charged with one of four schedule 2 offences – manslaughter, homicide by firearm, arson causing death or culpable driving causing death – then and only then the show compelling reason test will apply plus the unreasonable risk test.

Now, this is where one of our amendments comes to the fore, because we do not believe that that list is sufficient. We believe that while having the mid-level bail test apply to children is appropriate for manslaughter, homicide by firearm, arson causing death and culpable driving causing death, there are other serious offences that should be on that same list where the show compelling reason test should apply for a child seeking bail. Remember that a child can be anybody up to 17 years and 364 days old. That is what a child is under the law. We are not talking about eight-year-olds running around. Realistically, we are talking about older teenagers who are probably very, very close to being adults, and we believe that in these circumstances the following eight additional offences should be added to the bill to attract the show compelling reason test for bail in the case of a child: causing serious injury intentionally in circumstances of gross violence; rape; rape by compelling sexual penetration; sexual penetration of a child under the age of 12; armed robbery; aggravated burglary; aggravated home invasion; and aggravated carjacking. We believe these are extremely serious offences, and the idea that somebody who is 17½ can be accused of committing rape or aggravated carjacking, aggravated home invasion or sexual penetration of a child under the age of 12 and be subject to the lowest bail test there is is not something we think will keep the community safe. We are not proposing the toughest test; we are not proposing the show exceptional circumstances test. We have thought about this as a sensible, modest but important change to keep Victorians safe. We ask the government to take on board these amendments and consider them seriously, because we believe that the addition of those eight offences in the case of a child to attract the show compelling reason test for bail will be important for keeping the community safe into the future.

With those exceptions, the basic test, the unacceptable risk test where the onus is on the prosecution, will apply to all children under these changes. Part 3 of the bill goes to what bail decision makers must take into account. There is quite an exhaustive list of what is proposed in relation to children. For example, the bail decision maker must – in addition to everything else they already need to consider under the act – consider:

the child’s age, maturity and stage of development at the time of the alleged offence;

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

the presumption at common law that a child who is 10 years of age or over but under 14 years of age cannot commit an offence …

There are a whole lot of factors there. We are not opposed to the idea that when it comes to a child who is accused of committing an offence, the bail decision maker should take a very careful approach to consider all the relevant factors before determining whether bail is granted or not. It does get a little bit like a sociology lecture in some parts. One of the factors is:

the fact that time in custody has been shown to pose criminogenic and other risks for children, including –

a risk that the child will become further involved in the criminal justice system; and

a risk of harm …

In terms of risk of harm, the government should be really making sure the child youth detention is run properly to avoid a risk of harm to children. I would have thought that the government has an obligation in loco parentis. If the government is holding a child on remand, it is the government’s obligation to ensure that there is not a risk of harm to the child. I am concerned the government seems to be just running up the white flag with those issues.

In relation to considerations concerning Aboriginal people there is, again, a very significant list of additional factors that a bail decision maker must take into account. It includes things such as the:

historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system …

I acknowledge the government has been consulting with the First Nations communities on some of these issues. I do think that it is better to focus on an individual. I mean, courts are not there to decide historical wrongs, they are there to make decisions about the actions of a person in front of them. I think that matters that go to that person should be given greater weight than ideas of what might have happened to that person’s family generations ago, because where does that end?

We are a great multicultural immigrant state, immigrant country. Many people have come here as refugees who have suffered considerably over the course of their lives and their families’ lives, more importantly. Should that be considered? It is an interesting question, because once we start looking at the idea of historical wrongs against one group in the community – well, I see the member for Wendouree shaking her head. But when you look at refugees who have come here from war-torn countries and who maybe have not themselves experienced these things but their forebears have, is that not a relevant consideration?

Juliana Addison: Intergenerational trauma.

Michael O’BRIEN: But that is it. I think it is very hard for a bail decision maker to necessarily have that breadth of understanding and also know how intergenerational trauma may have impacted that individual before them, because ultimately these are decisions about individuals.

Juliana Addison: And institutional racism.

Michael O’BRIEN: I accept that. So that is the question. In putting these additional factors in play, first of all I hope that our bail decision makers are actually given the opportunity to understand what is meant by this and how they are supposed to apply that to a case of an individual before them, because that is not unreasonable. It is fine for the government to put these things into legislation, but then how do we equip our bail decision makers to understand these factors so they can be applied in an individual case before them? That is what I am putting on the table. Also, the fact is that there may well be other groups in our community, people we have welcomed here, who have suffered intergenerational trauma through their own circumstances. Are they not to be considered?

Juliana Addison: Everyone.

Michael O’BRIEN: Well, that is it.

I am running out of time here, so I should get through it. I have flagged our amendments in relation to adding those extra eight offences in relation to children to attract the mid-level bail test. We think that is very important. We also do have an issue with the government seeking to repeal the offence of committing an indictable offence whilst on bail. This was introduced by the coalition government back in 2013, and the effect of it is that in the case of an adult, if you get bail and then you commit an indictable offence whilst on bail, automatically the bail test is uplifted. It is automatically uplifted, usually to the show compelling reason test plus unacceptable risk. We believe that actually is an important safeguard. If somebody has been given the right, the licence, if you want to call it that, through bail to be in the community before their trial and then that right or licence is abused by that person committing an indictable offence, a serious offence, we do believe it is appropriate there should be a stronger test to get bail again. So we do not support the repeal of the offence of committing an indictable offence while on bail.

The bill also provides that rather than having to be unrepresented at a bail hearing before you can have another attempt at a bail hearing without showing new facts or circumstances, effectively you get two free goes. You can be represented at a bail hearing, and if you get knocked back you can then make a further application without showing new facts or circumstances – but only for that second attempt. Beyond that there is a requirement to show additional facts and circumstances.

As I have adverted to before, we also propose to amend the bill to have a requirement for a two-year statutory review. When I was Treasurer – I am sure the Assistant Treasurer would know it – the one thing I could guarantee about budgets was that they are not going to be 100 per cent accurate. They are a forecast; they are your best estimate. You know that the numbers are not going to come in right on the money in 12 months time. We know from history that no bail bill ever has exactly the intended effect. We always know there are unintended consequences, and given the importance of these changes to community safety and to reflecting and respecting fundamental principles such as the presumption of innocence, we believe it is absolutely essential there be a legislated requirement for a two-year review of these changes and that that review should be completed within six months and tabled in the Parliament. The opposition will not oppose this bill. We believe it represents some improvement, but it would be better and Victorians would be safer if the opposition’s amendments were supported by the government.

Juliana ADDISON (Wendouree) (11:10): I rise to speak in support of the Bail Amendment Bill 2023, which makes changes to Victoria’s bail laws to ensure that those accused of minor offending are not subject to harsh bail tests, while at the same time ensuring strict bail tests remain for those who pose a risk to community safety. In making this contribution I acknowledge the death of Veronica Nelson in custody at Dame Phyllis Frost Centre, which was tragic and preventable. I want to acknowledge the distress and sorrow experienced by Veronica’s family, Aunty Donna Nelson, her partner Percy Lovett and all those who loved and knew her. I thank them for their advocacy for bail reform and preventing further deaths in custody, particularly of those on bail. Our government fully recognises the need for action to ensure that our bail system addresses the over-representation of Aboriginal people in our justice system, and the reforms put forward in this bill seek to work towards this important goal.

The reforms that we are discussing today come about thanks to the leadership of our Attorney-General, and I want to thank the Attorney-General for the work that she has done; Rebecca Andrews in the ministerial office and all the advisers; as well as our public servants, who do so much work in the Department of Justice and Community Safety. Importantly, the content of this bill has been informed by targeted consultations undertaken by DJCS with key stakeholders, including but not limited to the courts, Victoria Police, the Victorian Aboriginal Legal Service – and I thank Nerita Waight, the CEO of VALS – the Federation of Community Legal Centres; Victoria Legal Aid; and the Aboriginal Justice Caucus.

The key reforms in the bill are the repeal of two offences against the Bail Act 1977, one being committing an indictable offence while on bail and the second being contravening bail conduct conditions. There will be a refocus on reverse onus bail tests on serious offending. The bill will change the bail test for children accused, with a further narrowing of reverse onus bail tests and an update on the Aboriginal-specific bail considerations. It will relax restrictions on second bail applications and allow other reforms designed to reduce inappropriate remand for minor alleged offending. The reforms proposed in this bill address many of the issues and findings raised in the coronial inquest into the passing of Veronica Nelson, the Yoorrook Justice Commission and the parliamentary inquiry into Victoria’s criminal justice system.

As chair of the Women’s Correctional Services Advisory Committee – WCSAC – which reports to the Minister for Corrections, I know what a difference the changes proposed will make to the lives of women in contact with the justice system. WCSAC was first established in 2003 to provide an external source of expert advice on the delivery of correctional services to women in custody and under community supervision. The committee comprises incredible women who are key stakeholders with diverse backgrounds who have considerable working knowledge and experience of the complexities and challenges faced by women in custody, and I thank them for the work they do – as well as the WCSAC secretariat.

Through my involvement with WCSAC over the last few years, I have learned more about the ongoing issues of women in the correctional services system through discussions with representatives from Corrections Victoria and those who work every day with women in our prisons. Women in prison are twice as likely to have mental illness. They are more likely to have an acquired brain injury, they are more likely to have minimal employment histories, they are more likely to have unstable housing, they are more likely to be primary caregivers of their children and they are more likely to have committed offences while under the influence of substances or to support their substance dependence.

I have had the opportunity to visit the Dame Phyllis Frost Centre (DPFC) and Tarrengower and meet with women in custody, speaking with them and listening to them. Many women in custody have complex needs and have suffered significant trauma in their lives. I am well aware of the over-representation of Aboriginal women in custody in Victoria and the importance of improving health care and disability services in our prisons. I know the impact that Victorian bail laws have had on individuals and all aspects of their lives, including their children, their employment and their housing. I am confident that the changes being proposed in this bill will bring about better outcomes for women and their children.

I would like to recognise the work of the Minister for Corrections Mr Erdogan in the other place as well as the previous ministers for corrections, including the member for Niddrie, the member for Sydenham and the member for Carrum. I welcome that the Andrews Labor government is progressively implementing reforms that recognise that women in contact with the justice system often have complex and varied needs and experience high rates of victimisation and trauma. A purpose-built centre opened in April 2022, replacing beds no longer fit for purpose and designed to help more women get involved with rehabilitation services. The centre is the first of its kind in Australia, designed in line with trauma-informed principles.

The 2023–24 budget has invested $18.35 million for supporting the corrections system to improve community safety. This funding includes, among other initiatives, support for women to maintain or develop strong family connections while in custody, including $1.1 million to continue family engagement services in women’s prisons, which provide family engagement workers, family engagement support and family therapy. We have also allocated over $40 million over five years for the women’s custodial health services initiative to deliver expanded primary health services through public health providers at DPFC and Tarrengower.

The bill before us primarily proposes amendments to the Bail Act 1977 in order to improve bail tests, update the required considerations for bail decision makers, repeal certain unnecessary bail-related offences and make several other improvements to Victoria’s current bail laws. There are certain tests that must be satisfied when considering whether bail may be granted, with the severity of the alleged offences determining which tests are applicable. This bill proposes to improve these tests and their application in several ways. One of the fundamental changes proposed is the concept of uplift, where a person on bail is then alleged to have committed another offence and thereby faces a much more onerous bail test than the normally applicable one for that offence alone. The consequence is that alleged low-level, non-violent repeat offenders end up on remand more often despite posing little risk to the community. To address this, the bill proposes that test uplift should no longer apply for non-schedule offences so that bail can be considered more appropriately for lower level allegations.

This bill seeks to make further sensible refinements to the unacceptable risk test, which is that lowest level test for bail. Under these changes, for low-level alleged offenders a risk of committing an offence while on bail would not be reason enough for remand unless there is a risk to the safety or welfare of another person. Additionally, the majority of summary offences would be classified as remand-prohibited offences where bail cannot be refused unless an exception applies, although appropriate conditions may apply with the possibility of remand for non-compliance. Remand prohibition will not apply to certain serious summary offences, as outlined in the new schedule 3 offence category.

In addition to directly addressing bail tests, this bill also amends the specific matters that must be considered by a bail decision maker, such as a magistrate or a police officer. Under section 3A of the current act, where a bail applicant is an Aboriginal person, bail decision makers are required to consider cultural background and other relevant cultural issues or obligations in their decision.

I would just briefly like to mention that bail considerations specific to children are also expanded in light of the inherent vulnerabilities of young offenders, for whom remand must only be a measure of last resort. This is a very important bill that is progressing Victoria to be a fairer, safer state, and I commend it to the house.

Danny O’BRIEN (Gippsland South) (11:20): I am pleased to rise to follow the member for Wendouree on the Bail Amendment Bill 2023 and the member for Malvern, who has given a very detailed and comprehensive summation of this legislation and also of the opposition’s position on it. As the member for Malvern indicated, we will not be opposing this bill, but we do have some amendments that we think are crucial to improving the bill, because that is what this is about. This is really about an ongoing process of getting things right, and it is clear to all and sundry that governments do not always get justice and bail legislation right the first time. In fact it is an evolving process that goes on.

We see the background to this piece of legislation. Of course there were changes to the Bail Act 1977 under the former coalition government in 2013 and then further changes in 2017 after the Bourke Street tragedy and the fact that the accused then, James Gargasoulas, was on bail at the time of that horrible event. This is about getting the balance right. It is about getting the balance right to ensure that people who need not be in custody are not in custody because of the bail laws, but also it is about the rights of the community and victims of crime and making sure that we protect our community from people who have done the wrong thing and deserve to have their liberty constrained. I have enormous sympathy for the family and friends of Veronica Nelson, whose case has in large part prompted these changes – and the coroners report that ensued – and there are many other cases too.

It is clear too, and the opposition accepts, that the changes that were brought in in 2017 have resulted in far too many people being remanded when they did not need to be, in some cases for periods longer than they would have received or did in fact receive in terms of sentence. So we acknowledge and accept what the government is trying to do to correct the balance to come back to a more balanced scheme, because we do not believe that people who are charged with minor offences should be unnecessarily remanded in custody. We have seen that through our justice system. We have seen the statistics that indicate that whilst the overall prison rate is going down, the rate of those on remand has dramatically increased over the last few years. That has, as the member for Wendouree indicated, impacted disproportionately on some sections of the community, particularly those of Aboriginal descent and women as well.

I also want to talk a little bit about the victims, and I want to give an example for the chamber to understand the need to get the balance right on behalf of community safety. I will talk about a case study that comes from a member of my community, someone who I know. I am also conscious that there is ongoing court action in relation to this, so I will not use any names other than to say Jim from my electorate. Jim is 77 years old. On or about New Year’s Day this year in the city he was picking up a friend from an address and was putting their bag in the boot of his car when he was assaulted. He was punched by a man who literally walked past. He punched Jim twice and knocked him to the ground. In doing so, this individual broke Jim’s cheekbone in two places and shattered an eye socket. This was a completely unprovoked attack. Jim did not even see it coming. There was a thump on the side of his car, and a second later he felt the first blow. This person did not speak to Jim. He did not look him in the eye. He did not say anything after the assault. The last thing Jim saw as he looked up from the ground was three people walking away. They did not look back; they did not say anything.

Jim, as I said, has suffered serious facial injuries from that, and he told me recently that his whole lifestyle has been changed as a result of this assault. He is still very adversely affected, as is his wife. He was in hospital for several days, and to this day – this happened, as I said, in January this year – he is still doing physical rehab and very clearly suffering the mental scars of that assault.

The reason I give this example is – and again I cannot verify this, which is why I am not using any names other than the facts that have been put to me – it is understood that this person had been bailed a number of times previously. I am not sure whether the person was on bail at the time. The person was also a child in the eyes of the law. As the member for Malvern indicated though, a child can be anyone under 18, and indeed I think this person was 17¾ years of age at the time. The fact that allegedly this person was on bail at the time perhaps makes it not surprising that, when he was to appear in court just recently, he did not show up – and I understand a warrant is now out for this person’s arrest.

I tell this story because I think it is important that the chamber, the Parliament and indeed the government understand that there are things that happen when people are on bail that should not be allowed to happen and that those perpetrators should rightly be punished not only for their action in a criminal sense in the first instance but for breaching the privilege that comes with maintaining their freedom after having been charged with an offence from the start. That is a significant issue that the community expects us to get right, and I am not sure whether this necessarily does, particularly in these circumstances where this individual will be treated as a child and certainly was in the eyes of the law. But this is a very serious event that happened to a really good person, a good community person – which of course is irrelevant. Whether they are a good community person or not, they are a victim of crime – a crime allegedly committed by someone who was on bail at the time – and that is something that we need to understand.

So it is that I support the amendments moved by the member for Malvern, in particular retaining the offence of committing an indictable offence whilst on bail. That offence was introduced in the 2013 changes by the then coalition government, and in effect it says that if you are charged with this, there will be an automatic step-up in the test for bail on a person charged with that offence. In addition, and this perhaps goes to the sort of circumstance I just described with respect to Jim, it is to add eight serious offences to the list that require a compelling reason bail test for children. The member for Malvern has outlined those, but we believe that in circumstances of charges of rape, rape by compelling sexual penetration, sexual penetration of a child under the age of 12, aggravated home invasion, aggravated carjacking, aggravated burglary, armed robbery and causing serious injury intentionally in circumstances of gross violence – and that may well be the sort of offence that relates to the story I just told – there should be a higher threshold for bail. As the member for Malvern said, we are not talking necessarily about eight-year-olds here. We can be talking about virtually grown men and women who in the eyes of the law of course are still children. But for those very serious offences we do need to ensure that there is a higher test for bail, so I certainly support the member for Malvern’s amendment with respect to that.

Finally – this probably gets me back to where I started – our third amendment is to institute in the legislation a compulsory two-year review of these changes, and I think that is appropriate. As I said, this is about getting the balance right. We have seen a number of changes to bail over the past decade, and the acknowledgement by the government and by us in the opposition – I think by the whole chamber – today is that we did not get it right in 2017. I think we can be fairly sure that we are not getting it 100 per cent right today, partly because we may not have got the wording right or we may not have got the balance right but also because circumstances change. Things change. Community perceptions change. Crime changes. So the least the government could do is to accept that particular amendment and ensure that in two years time, after there has been some interpretation by the courts and there has been some experience of these changes, it be reviewed and that within six months that review be provided to the Parliament. I think we must limit people in custody unnecessarily. But we also need to get that balance right on behalf of the community and particularly of victims of crime, and I look forward to this bill proceeding in the house.

Martha HAYLETT (Ripon) (11:30): I rise to speak on the Bail Amendment Bill 2023 today. Before I begin my contribution, I would like to acknowledge the family of Veronica Nelson, who may be watching today. I cannot possibly imagine the pain that they have been through. I express my deepest sympathies to Veronica’s family, friends and community. A death in custody is never, ever acceptable, and I am committed as a member of the Victorian government to working hard to prevent future tragedies from happening.

There are important changes in legislation being brought to this place today, but we must be honest with ourselves that this is just one step in the journey we must take to ensure that a death in custody never happens again. Over the past decade there has been a significant increase in the number of Victorians remanded in custody. They have not been convicted of a crime and in some cases stand accused of minor, non-violent offences. Holding an accused person in remand in some circumstances is an important part of our criminal justice system, and I think we could all agree on that in this place. The community rightly expects that in many cases it is entirely appropriate to not grant bail to an accused individual. That is why people accused of serious crimes are subjected to the onerous exceptional circumstances test or the show compelling reason test. These provisions are designed to keep the community safe from people who have been accused of crimes such as murder, rape, home invasion or armed robbery.

But I believe that the community also expects the incarceration of a person who has not been committed of a crime to be a last resort. We know too that existing bail laws have been a major driver to the increased numbers in remand and that this is disproportionately affecting Aboriginal people, women, children and people experiencing disadvantage. The existing laws extend the onerous test to people who have committed minor, non-violent offences whilst on bail for other minor, non-violent offences. This gives the same treatment to a person accused of theft, who may pose very little danger to the community, as to a person who has committed the most heinous of crimes. This is simply not fair. It is not a good use of resources, and it has caused our remand prisons to fill with people accused of non-violent offences. This does not sit well with this side of the chamber. We have seen that these terrible circumstances have arisen from current laws, and that is exactly why we are changing them today.

This bill will deliver a package of reforms to the Bail Act 1977 to achieve a more balanced approach. It will target the Bail Act tests at those charged with serious offending by refining the unacceptable risk test, limiting the reverse onus bail test to only those charged with serious offences and introducing a new child bail model which will give effect to the principle of custody as a last resort. It will also repeal two Bail Act offences: committing indictable offences whilst on bail and contravening conduct conditions on bail. It will update the considerations that bail decision makers must take into account by expanding Aboriginal and child considerations and considering likelihood of imprisonment and, if so, how the likely length of the custodial sentence would compare to the likely time on remand. Importantly the bill will also refine the requirements for subsequent bail applications at court, and it will prohibit remand particularly for minor offences, with exceptions.

The bill will also require bail decision makers to specifically consider whether the accused is likely to be sentenced to a term of imprisonment if found guilty and, if so, whether they are likely to spend more time on remand than the likely length of the custodial sentence. It will allow an accused person to make a second legally represented bail application before a court, without having to establish new facts or circumstances, as is currently required. This seeks to remove the incentive for applicants to try and secure a second application by appearing without a legal representative at their first application. And the bill will also make amendments to modernise and improve the act, including adopting gender-neutral terms, updating the definition of ‘Aboriginal person’ and making it clear that the rules of evidence do not apply in a bail application.

These are such important reforms, and we now know that the amendments to the Bail Act in 2013 and 2018 cast the net too wide. It is our job as the government of the day 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 were in response to the tragic events in the Melbourne CBD on 20 January 2017, when James Gargasoulas murdered six people and injured many others. He was on bail at the time, and this was not the first violent crime that had undermined public confidence in the bail system. The subsequent legislative changes after this event 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, but it left some of our community disproportionately exposed to criminalisation and incarceration. In this respect we did get the balance wrong, and we are the first to admit that.

The reforms that we are now introducing in this bill today seek to ensure that all members of the community are protected and that low-level offending is responded to proportionally and effectively. We know that these reforms are urgently needed. They will take effect as of 25 March 2024, next year, which balances the need for change with the time that the courts, police and legal assistance providers will need for implementation.

Despite what some in the media or those opposite may say, it is important to note that this bill does not seek to reduce the onus on rapists or murders, but rather it is for people who have been accused of crimes akin to petty theft. Community safety is so important, and it is a core concern of this government. These reforms recognise that the existing laws have failed to protect parts of our community, and we need to fix that. Remand and custody should be used to keep Victorians safe, not to further punish the most vulnerable members of our community. Where the accused poses an unacceptable risk if released on bail, it is appropriate that they be remanded. The Bail Act will continue to prioritise community safety while ensuring that people are not necessarily exposed to harmful custodial episodes.

I want to sincerely thank the legal and community advocates who have helped lead these reforms, particularly advocates in the Aboriginal community. I would also like to acknowledge the public servants, the Attorney-General herself and the fantastic team in her office who have done a big, big power of work to get this to where it is today. These are not small reforms, and they should never be diminished – that they are not enough. We know that we need to do more, and that is exactly why we are getting on with doing that.

I would also like to, again, acknowledge the tragic events that shed light on the need for reform. I want to acknowledge the hardship and trauma caused by Veronica Nelson’s death. I want to acknowledge Veronica’s amazing family, particularly her mother Aunty Donna Nelson and her partner Percy Lovett, for their strength in turning their grief into advocacy to prevent future deaths in custody, including for those on bail. The Victorian government, which I am so honoured to be a part of on this side of the chamber, fully recognises the need for action to ensure that our bail system genuinely recognises the over-representation of Aboriginal people within our justice system. There is a long road towards reforming our justice system in Victoria, but these reforms seek to take a big step in the right direction. I am proud to see these changes happening and to be a part of a government that is doing what matters. I commend the bill to the house.

David SOUTHWICK (Caulfield) (11:39): I rise today to make some comments on the Bail Amendment Bill 2023, and can I say from the outset that in this particular area of the justice system it is really important to get the balance right. There is no question that we do need reform, and there have been a number of speakers that have already made contributions in the house talking about some of the issues surrounding the need for the reform. I think it is really important for us to be doing that work, because we must understand, firstly, the financial cost of incarcerating people and also the social cost – the revolving door element of the justice system. Once people tend to be locked up, particularly for more minor offences, we have seen lots of evidence where that spirals further on a downward slope, and certainly it does not do society and the community – anyone – any good, including, needless to say, the person that committed that offence.

But having said all of that, it is also important when we look at this particular work that we have got a balance between ensuring that we look at supporting and encouraging those people to take the right side of the path in terms of managing them through a system and safety in keeping the community safe. I want to acknowledge from the outset our Shadow Attorney-General, the member for Malvern, for the work that he has done on this particular bill. It is a very detailed bill. There is lots of information in this bill, and as I say, it is very important to get the balance right here and ensure that community safety is certainly underpinned by anything that we do here, because we do not want to see a situation where the community are left threatened or unsafe because we have not got the balance right.

A number of people have mentioned the Bourke Street tragedy, which was the first element that actually led to the tightening of the bail laws, and I want to put on record some comments around that. 2017 certainly changed the whole lives of many, and it is a reflective point. There are certain times in our lives where we recall something, whether it is a celebratory thing or a tragedy. The Bourke Street tragedy was something that we will all remember. We will remember where we were, we will remember the morning and we will remember the grief, and those that have lost a loved one will never forget that. I want to put on record my continued support for the Hakin family. Thalia Hakin, a 10-year-old girl, had her life tragically taken from her, and I regularly catch up with the Hakin family. Their lives will never be the same. Thalia’s younger sister Maggie, just seeing her and what she has got to go through in terms of her life and her journey – people never really understand unless they see it what an impact something like that has on people’s lives, and it is horrific. Gargasoulas was on bail. Gargasoulas should have never been on bail. The police argued for him not to be granted bail, and the series of events unfolded. So we know the reason why things were tightened, and justifiably in his case – they needed to be. At the same time we see the Indigenous community and the African community well and truly over-represented in our justice system. We need to ensure, certainly when there are less severe crimes and minor offences, that there is an opportunity for reform and rehabilitation. Where we can, we need to ensure that we do not incarcerate people when we do not have to do that.

In terms of getting that balance right, there are three amendments that the member for Malvern has suggested, and I want to support those amendments. The first one is to retain the offence of committing an indictable offence whilst on bail. If somebody is given that opportunity, effectively given a chance – and life should always be about giving people a second chance – but they commit an offence while they are given that second chance, then I think that really does question how many times one actually does offer up that option. So retaining that offence here is important, and it is something that we should certainly not move away from.

The second part is adding eight serious offences to the list that requires a compelling reason bail test for children accused of these offences. Again, no-one wants to lock up children; it should be the last resort that we go to. Having visited the youth justice system and many of the facilities and seen some of the kids there, it does break your heart. As I said, there is over-representation of our African and Indigenous communities, so we have got a lot of work that we need to do.

In terms of the eight serious offences, including rape, rape by compelling sexual penetration, sexual penetration of a child under the age of 12, aggravated home invasion, aggravated carjacking, aggravated burglary, armed robbery and causing serious injury intentionally in circumstances of gross violence, they are more than shoplifting. That is more than being caught up in the wrong crowd. We have got to be able to really differentiate between what is quite frankly a stupid crime and what is a serious crime. What is the situation? Yes, right, somebody did the wrong thing, they have got to learn from it and there will be consequences, but the consequences should not be as severe as for, as I have alluded to, those eight offences. They are a lot more serious and should have consequences. That is where the bail laws need to not change.

The third part is to mandate a statutorily required review of the effect of the amendments after 24 months of operation, to be completed and publicly released in six months. I think this is a really positive thing. I can think of many times in this Parliament, particularly with justice reform legislation, where we have done things and we have not had that review. It is important for us to review, to see whether these things are working, whether we need to do more or whether we need to actually amend what we have done. That is a really, really good thing that could only further improve our justice system. We should always be striving for the best when it comes to keeping people safe and at the same time giving those people that do things that are quite frankly silly the option of a second chance and a right path. I think that is very, very sensible, and I would hope that at the very least we see the government supporting that amendment, if not all the amendments.

As I alluded to at the very beginning of this bill, there are a number of things that we do argue over in this chamber, and there are a lot of times when we disagree, but certainly on bail reform it is important to strive for the best we possibly can and to get the balance right between community safety and also rehabilitation. I would hope that it would be seen that way. I know that certainly that is what we have been trying to do. Community safety should be paramount. We do still see, unfortunately, so much violent crime, so there do need to be consequences. There do need to be tough laws for when people actually deliberately go out and cause severe harm and know very intentionally what they are doing. They need to understand that there are consequences for their actions, and at the same time the community can be kept safe. I think particularly with sexual assault, with violence and rapes, with aggravated burglary and that kind of thing there have to be consequences. We cannot have people that are out on bail and are recommitting offences then get bail again. You just cannot have that. That is why we are certainly supportive of the intent of the reform. It is long overdue. It is very, very important for us to ensure we get the balance right, but at the same time the amendments that the member for Malvern has suggested to the house are very sensible, and I hope the government will be supportive.

Gary MAAS (Narre Warren South) (11:49): I to rise to make a contribution to the Bail Amendment Bill 2023. In doing so I note the comments of speakers before me, including the member for Malvern, the member for Caulfield, the member for Ripon and the member for Wendouree. In noting those contributions, I note that everyone has spoken to one very important word, that being the word ‘balance’. Balance is what is at the heart of this bill, and it is so important when we are speaking about presumed innocence that we do strike a balance, because it goes to the heart of what our legal system is and indeed what justice stands for.

Bail constitutes a pivotal element within our system of justice. Deciding against granting bail to an accused who is presumed innocent demands very careful and considered views due to the gravity of what that entails, and it is the bail decision makers who face that responsibility of evaluating the various multifaceted factors and potential risks, striving to make well-informed choices that uphold the rights of the accused and balance that with the welfare and indeed the safety of the community. The individuals tasked with making bail determinations approach their role with the utmost seriousness, acknowledging the profound impact of their judgements on the freedoms of the individual, and the government recognises the imperative nature of enacting legislation that directly influences the liberties of all Victorians.

Regrettably the current bail system is not functioning in accordance with its intended purpose in getting that balance right. In recognising the need for improvement, a concerted effort is being initiated to rectify its deficiencies and to enhance its efficacy as well. Reform of these laws has been called for by several reports, inquiries and legal stakeholders, most notably the coronial inquest into the death in custody of Veronica Nelson – the Nelson inquest – and the parliamentary inquiry into Victoria’s criminal justice system, both of which called for reforms to make bail more accessible.

At this point I would like to acknowledge and recognise the advocacy of the family and the community of Ms Veronica Nelson, a strong Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman, who tragically passed away while she was on remand. The details surrounding her death are well known – a tragic death, and a story that highlights many of the ways our system needs improvement. We acknowledge the tremendous advocacy of her family’s loved ones in the wake of her passing for reforms to our bail system.

The introduction of the Bail Amendment Bill 2023 signifies an opportunity to strike a harmonious balance. This legislative proposal aims to ensure that the legal system can meticulously assess the potential risks posed by individuals engaged in serious offences to the community, but simultaneously the bill seeks to prevent unnecessary pre-trial detention for those who do not pose such risks.

Victoria currently enforces the strictest bail laws nationwide, and that is the result of two rounds of prior reforms. As pointed out by the member for Malvern, I think, there was the round of the 2013 reforms during the opposition’s time in government. These introduced fresh bail offences involving summary offences carrying up to three months imprisonment. These offences encompass committing an indictable offence on bail and violating bail conduct conditions. They were followed up by the 2018 reforms of this government aimed at imposing stricter bail standards for those accused of offences while on bail. These changes included removing the presumption of bail for specified offences. Instead a presumption against bail was introduced, requiring applicants to disprove it. They introduced an uplift in bail assessment for individuals charged with reoffending on bail. This meant that repeat low-level offenders could face more stringent bail tests designed for more serious crimes. For instance, an individual committing an offence while on bail would face an acceptable risk test. Committing another offence on subsequent bail would trigger a double uplift, leading to a more demanding exceptional circumstances test.

These 2018 reforms were prompted by a well-known series of violent crimes, including the Bourke Street murders. That one in particular was committed by an individual out on bail. The purpose was to restore public faith in the bail system and implement reforms recommended by former Justice Coghlan to enhance community safety. As has been said, the combined impact of those two reforms has resulted in a notable rise in the detention of repeat non-violent offenders on remand, and this has disproportionately affected disadvantaged individuals, particularly women, children and our Indigenous communities.

The bill puts into action eight out of the 13 recommendations from the Nelson inquest that relate to the Bail Act 1977. These changes will remove certain parts of the 2018 reforms that apply to repeat minor offenders, and the reverse onus test will only apply to serious schedule offences. The bill clarifies the term ‘unacceptable risk’ to mean that minor potential offences will not alone justify bail refusal except if someone’s safety is threatened, like through repeated theft from a small shop. Thirdly, the bill gets rid of specific Bail Act offences like breaching bail conditions and committing further offences on bail, though these still have consequences, like revoking bail. Fourthly, it introduces remand-prohibited offences so certain minor offences will not lead to remand but bail conditions can still apply. Fifthly, the bill makes bail decision makers consider if an accused might spend more time on remand than the expected sentence length. Sixthly, it allows an accused person to make a second legally represented bail application without new facts. The bill presumes bail for children, except for severe crimes, with an unacceptable risk test still in place. The bill also updates factors to consider for bail if the applicant is a child or is of Aboriginal descent, and that is developed with input from relevant stakeholders. It requires bail decision makers to note Aboriginal-specific considerations when denying bail to an Aboriginal person. The bill clarifies and modernises the act by including gender-neutral terms and an updated ‘Aboriginal person’ definition and by excluding rules of evidence in bail applications.

Our courts and bail decision makers are aligned with the government’s dedication to establishing a secure and equitable bail system for Aboriginal individuals and for all individuals across the state. Recognising the importance of the new Aboriginal-specific factors, comprehensive training will also be a central aspect of the reform implementation. The training aims to equip legal professionals with a profound comprehension of relevant matters to be raised and assist bail decision makers in effectively applying these considerations when making decisions. To come back to the opening of this speech, I believe that this bill strikes the right balance, taking into account all of the aforementioned factors. It is a good bill, and I commend the bill to the house.

Martin CAMERON (Morwell) (11:59): I also rise to talk about the Bail Amendment Bill 2023. As someone that is new to the chamber, I am actually able to learn about how the bail system works. Normally in my past job we would wonder why someone has been bailed and is out in the community, but I have been able to listen to the member for Malvern articulate it and explain it to us in the party room and listen to others speak on both sides of the chamber. It is a really important amendment. As society changes and we grow, I think the changes that are being put forward in the amendment and also in our amendments that we have down here – I am just hopeful that we can come to a perfect spot at a particular time where these amendments will be able to go through. It is great to hear both sides of the house speak on it.

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. Disproportionately it is affecting Aboriginal people, women, children and people who are experiencing poverty for having minor incidentals where they are being caught and maybe charged by police but not being able to get bail, and it is actually clogging up the system. The purpose of this 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 the Victorian bail system laws strike the appropriate balance between the right to liberty and community safety, so that is what we are trying to get done in this amendment bill, along with a few other bits and pieces which are very important.

In the valley our crime rate is the highest in regional Victoria. For the year to 31 March there were 10,319 criminal incidents per 100,000 population recorded in Latrobe – and going up – and that is more than double the rate in the neighbouring Baw Baw shire and the highest of any municipality in the state outside metropolitan Melbourne. Our resources are already stretched thin, and police report that remanding offenders is already difficult under the current legislation because they are released on bail as soon as they are arrested. Many know this is the case, so the prospect of being arrested is no longer a deterrent. It is amazing that you see some youth on the street that struggle to get to school and have difficulty in learning, but they know their rights and where they sit, chapter and verse. It is amazing what they can learn. Police at times feel powerless to enforce the laws, and they report that the perceived lack of consequence only leads to reoffending and drains police resources more. When the penalties do not reflect the seriousness of the offending, we end up with a revolving door of recidivism.

For those whose offending is serious and carries a risk to the community, the tough bail test should justifiably apply. I think the member for Malvern explained nicely about the three tiers and where everyone is going to sit in those tiers, so we thank him for doing that in his lead-in on this amendment bill. As I said, the wider community needs to be assured the tough bail tests will still apply for repeat offenders and for those whose offending poses a risk to community safety, regardless of whether the alleged offender is perceived to be experiencing significant disadvantage, like the proposed bill states. In my electorate, breaches of family violence orders increased a whopping 20.2 per cent for the year to March 2023. These breaches have a disproportionate impact on women and children, yet there is a sentiment that many perpetrators who reoffend while on bail get more advantage under the current system than the victims, so we need to make sure that we do all that we can for those victims.

Also in the electorate of Morwell, right across the board in most towns we are facing issues with teens and their antisocial behaviour, and it would be the same in metropolitan Melbourne and right around regional Victoria. You only have to walk down the street to see sometimes how little respect our teens have and the way they talk to and harass people on the streets. They know that the police are not going to do a lot because of the bail reforms at the moment. They know exactly where they sit. Theft from retail centres, for instance, and assaults on staff have skyrocketed this year, and management and police alike have reported feeling helpless because current legislation does not allow for appropriate and proportionate action to be taken. Just last week a security guard at a local shopping centre was assaulted by a group of teenage girls. They were attempting to steal stuff out of a shopping centre, and the job of the guard was to stop them from doing it. That was his job, but in doing that he was assaulted. It is alleged the group of girls were repeat offenders. Obviously they know this because they are there often and they have video footage of when they are there. They told the security guard that they knew there would be no consequences because of their age. That is where the youth who are doing this may struggle to learn at school, but they know chapter and verse what their rights are.

The Bail Amendment Bill proposes that a differentiated approach to child bail is necessary to address the unique vulnerabilities and complex disadvantages that children and young people can face. It also states that keeping children out of custody and in the community will encourage them to retain prosocial connections, leading to improved outcomes and community safety. However, without consequences there is a risk that the opposite will apply. Without consequences, the antisocial behaviour is only reinforced and community safety is really compromised. As I have spoken about in here a couple of times, law and order issues are at the forefront of what we speak about, along with the cost of living and whatever, but people should feel safe to be able to go down to the local shopping centre, walk in and carry out their daily duties and return home safely, whether they are in a taxi or, as our older ones are, on a bus. We just need to have things in place if people are doing stuff that they should not be doing, whether that is on the streets offending – I know the member for Gippsland South spoke about a person that was bashed in his local community. It does go on all the time, so we need to be able to have this tier of the bail system cater for our most vulnerable young people that may be showing a lack of discretion and do not need to be sitting in remand for a week trying to get out. They need to be able to be sensible about it all.

As I said before, both sides of the chamber need to be on the same page and be able to do this very important work. It is a pleasure to be able to learn about it myself, to see how it all works but then to be able to stand up and put my community’s side forward. As I said, there is stuff going on in everybody’s local community, but to be able to stand up and learn about the Bail Amendment Bill and how the whole procedure works gives everybody a clearer idea. I thank the house for the time.

Katie HALL (Footscray) (12:09): I am very pleased to make a contribution to this important bill, the Bail Amendment Bill 2023. I would like to begin my contribution by acknowledging the family and the loved ones of Veronica Nelson. I would like to acknowledge their advocacy and share with them our collective grief at the circumstances of their loss. In Victoria we want to have bail laws that get the balance right. As the member for Narre Warren South mentioned in his contribution, we have spoken a lot today about balance.

It has been a nice thing to be in the chamber for this debate, because from the member for Malvern’s contribution to the member for Wendouree’s and member for Caulfield’s contributions everyone has made thoughtful contributions to this debate. I think it demonstrates this place at its best – to try and achieve the best outcomes for the community and the justice system. We want to have bail laws in Victoria that get the balance right between being fair and tough. If there is an unacceptable risk to the community that a person would endanger the safety or welfare of any person, of course they should be remanded and refused bail. I often think about Jill Meagher, and I think about the circumstances of her death – her murder – by a man who was not only on bail but who had been paroled, and who was eventually found to be guilty of 20 rapes. He is now where he belongs. But I often think about the way the bail laws let our community down in that situation, and I think about how the bail laws let our community down and Veronica Nelson’s loved ones down, when she should have been in hospital, not remanded in custody.

If a person is charged with a serious offence, such as murder or terrorism or rape or assault, only under the most exceptional circumstances can they be given bail, and that is common sense. That is reasonable policy. However, we do not want laws in Victoria that result in the over-representation of children, women and Aboriginal people who are on remand and locked up in custody. This is where the Victorian bail laws can be fairer and should be fairer. We want a justice system that is administered fairly and equally, where we strive to create a balance between toughness and fairness in the law. Our aim has always been to ensure the safety and wellbeing of our community whilst upholding the principles of justice and equality.

Our commitment to safety and security should not lead to an over-representation of vulnerable segments of our society being on remand and in custody. We must strive for a better justice system that is not only stringent but equitable. Victoria’s current bail laws do not properly distinguish between low-level, non-violent offending and the serious offending that poses a risk to community safety. It is here that lies a situation that has led to an increase in remand, particularly for repeat offenders who may not pose a risk to community safety. But let me be clear: when a person poses an unacceptable risk to our community’s safety and welfare, whether through acts of violence or endangerment or the gravest of offences, they must face the consequences and not get bail. We value the principles of common sense and reasonable policy in this regard. But what we have witnessed is that these policies can have unintended consequences: children, women and our First Nations community should not find themselves disproportionately affected by the rigours of the justice system. This is where the pursuit of fairness comes into play. When a person is arrested, of course they can apply to be released from custody on bail, and this is an agreement between the court and the person that they will return to court at a later stage to respond to their charge. Bail is often granted with conduct conditions, such as a curfew or travel restrictions, and is determined by the bail decision maker.

If they are not granted bail, they are remanded in custody until their matter can be heard at a later date. Whether or not a person is granted bail depends on whether the applicable test for granting bail has been satisfied, and there are three tests. The first is the unacceptable risk test. This is when the prosecution proves that there is an unacceptable risk that a person would endanger the safety or welfare of any person or commit an offence while on bail. The second, the show compelling reasons test, requires a person charged with an offence set out in schedule 2 of the act – crimes like rape and aggravated assault – to show compelling reasons as to why their detention in custody is not justified. And the third is the exceptional circumstances test, applying to a person charged with a schedule 1 offence like murder or terrorism, and these people must establish that there are exceptional circumstances to justify bail. It is these tests that need to be refined.

The bill will eliminate the unforeseen consequences of the 2013 and 2018 reforms – the disproportionate impact on people experiencing disadvantage, particularly women, children and Aboriginal people. The bill will address the most urgent problems with our current bail laws so that low-level non-violent offenders are no longer being remanded when they do not pose an unacceptable risk to community safety. The bill will repeal those aspects of the 2018 reforms for those accused of repeat lower level offending so that a reverse onus test will apply only to the serious offences specified in the schedules of the Bail Act 1977. We do not want children arrested for graffiti or shoplifting offences put into custody.

The definition of ‘unacceptable risk’ will be refined to make it clearer that a potential risk of minor offending is not enough reason to refuse bail unless someone else’s safety or welfare is threatened. This is a sensible reform. Whilst there will still be consequences for breaching bail conditions, as there should be, it will be a standalone offence – failing to appear will still remain a standalone offence.

The bill introduces remand-prohibited offences. This means a person arrested for an offence that is unlikely to receive a prison term will not be remanded. Those on bail for such offences will still be subject to bail conditions, ensuring community safety is upheld. We do not want people being locked up on remand for longer than any likely prison sentence, and this bill addresses that issue. We want there to be a presumption of bail for children. Certain crimes, such as terrorism and homicide offences, will be the exception, because custody has to be the last resort for children. The unacceptable risk test will still apply, so if a child is a risk to the community or someone else, they can be held on remand. This is reasonable and this is fair.

I would like to acknowledge the work of the Attorney-General. This is a really challenging thing to work through, and I know that she has worked closely with important stakeholders and that this has been informed by a range of different inquiries and different circumstances. In concluding, I think that this reform is a really important one. I am very proud to be able to contribute on it, and I wish it a speedy passage.

Cindy McLEISH (Eildon) (12:19): I too rise to speak on the Bail Amendment Bill 2023, and I would be fairly confident to say that everybody in this chamber would want the best outcome for this type of bill and for our bail system in the state, because at the end of the day we want to have a very safe community. We need it to be safe not just for ourselves but for people who are more elderly and certainly those with children and young adults as well who may find themselves targets of particular crimes at particular times. As has been mentioned in the opening speech by the opposition from the member for Malvern, the Shadow Attorney-General, it is really important that we get this right. It is for that reason the opposition are looking to be exceptionally constructive in our dealings with the government on this, because we know there have been changes; historically all governments have been making changes to this area to get it right. The lead speaker has put forward a number of textual amendments that we think will strengthen this bill. I will certainly be supporting those, and towards the back end of my contribution I will touch on those further. As I said, it is getting the balance right. Community safety is the right balance. It is really important, but so is that the alleged perpetrator has the presumption of innocence and their own rights. We do know that remand and bail play a really important part in our justice system. Some of the changes that have been put forward here in this amendment bill we certainly agree with and are very sensible, but I think, as the lead speaker has said, some of them could be better.

I want to go through a little bit of history, and many people in this chamber would be aware of the history over the last 10 years or so. The bail laws were tightened by the coalition in 2013, and one of the things that was important here was introducing specific offences of contravening certain bail conditions or committing an indictable offence whilst on bail. This is something that we still feel quite strongly about. We had a number of very high profile cases. We had the matter of Adrian Bayley, who committed horrendous offences whilst on bail and on parole. Then we had the Bourke Street tragedy in 2017 with James Gargasoulas, who killed six people while on bail. That really prompted a lot of action by the government to get up and change the bail laws to make it harder – in fact that is exactly what the Attorney-General said at the time, that it would be particularly difficult and I think one of the most difficult – to get bail in this state because of the response. So the laws were further tightened in 2017 and 2018, and here we are now in 2023 having a look and making some further changes to those most recent changes, which the government had made because it was difficult – and it is difficult – to get it exactly right. That is the aim. But given there have been a number of changes that have not been exactly right, that is one of the reasons for one of our amendments about the statutory review after two years – so that if it is not having the desired effect there could be some further changes made.

A couple of the changes in 2017 were inserting a purpose and guiding principles section, which was about making it really difficult; a clarifying and expanding of the list of offences and that the accused must show exceptional circumstances; and a clarifying and expanding of offences and that the accused must show compelling reasons. So there was quite a lot that was done, but it has not quite had the desired effect, because we have found that the number of prisoners in prisons at the moment, those who are sentenced and unsentenced, are really growing quite remarkably. The sentenced prisoner numbers are almost level pegging over the last decade, but we can see certainly since some of these changes that unsentenced prisoner numbers, those that are on remand, have really jumped. We need to be mindful of the impact that this has not just on our justice system and our courts but also on the individuals involved, because we have had some work done by the library and the Sentencing Advisory Council that have talked about the number of people that have served time on remand which is greater than the amount of time they were given as a sentence. I think it is really important that we stop and reflect on a number of these matters.

The Sentencing Advisory Council report from 2020 found that 20 per cent of all prison sentences were time-served prison sentences, and in 2020 nearly one-third of those who received a prison sentence and had already spent time on remand received a time-served prison sentence. They had done that time already. In 2014 this same group made up only one in nine. That is a huge jump, from one in nine, just over 11 per cent, up to 33 per cent. That is really quite staggering when we have a look at those figures. So things certainly do need to be done to change this.

We do have a number of comments and concerns. As I have mentioned, there is no doubt that these need to be reformed. Keeping people on remand comes at a cost. There is a financial cost to the system and there is a personal cost, because particularly if you are somebody who gets a sentence which is shorter than the amount of time that you have served on remand, that is actually a real problem. It also indicates that we need to keep things moving through our courts.

Part of these changes are around the findings of the Veronica Nelson inquest. It was a pretty horrendous situation, the way she was treated, having to ring the buzzer continually to get help and then not receiving the help that she needed. I am not sure that there is anything here that is really going to change that outcome, but something that we still need to be very mindful of is how people are treated, because everybody needs to be treated with respect regardless of their background and condition at the time. I guess at times it is difficult for some of the custodial officers to understand and know the extent of somebody’s issues, but that is part of the training that they need to have so that they understand that one size does not fit all and you need to look at everybody as an individual.

A couple of the changes that we are putting forward are through textual amendments, as I mentioned: there is a two-year statutory review which, if things are not heading in the right direction, gives an opportunity to come back and to have a look at it. I think that that is particularly useful. That would be tabled in Parliament after that review; six months later it is to be tabled in Parliament. Also, we would look to add the following specific offences to the compelling reasons bail test for children. There is quite a lot here. The bill already provides that that applies to manslaughter, homicide by firearm, arson causing death and culpable driving causing death, but we would like to add rape, rape by compelling sexual penetration, sexual penetration of a child under the age of 12, aggravated home invasion, aggravated carjacking, aggravated burglary, armed robbery and causing serious injury intentionally in circumstances of gross violence.

There is quite a bit there for the Attorney-General to consider before this bill gets to the other place. We will have four weeks, so that is a good period of time for her to look at the amendments that we have put forward in good faith. We are very keen to work with the government to make sure that the changes that we make are not just sensible but really useful and can make a difference and protect the community as part of getting that balance right, because we do need to get the balance right. We do need to make sure that those who should be denied bail are denied bail through the level of testing that is currently available, but we also need to make sure that those offences that should be included are included. I commend the Shadow Attorney-General for his work and look forward to positive engagement by the Attorney-General to progress our textual amendments.

Josh BULL (Sunbury) (12:29): I am really pleased today to have the opportunity to contribute to debate on this important bill, the Bail Amendment Bill 2023. This bill goes to some of those core values that underpin this government, the Andrews Labor government, around fairness, around justice and around continuing to create a stronger society and a stronger community and of course making Victoria as fair as it can be. We know and understand the importance of investment in education, in health, in community services and in making sure those that live right across our great state are supported to be their best, to have those opportunities in life and to do the things that they are rightfully entitled to. But what we know and understand is that many within our community will face significant challenges within their lives.

This bill and indeed the matters contained within the legislation of course go to matters that are quite complex scenarios that, as other members have noted, should be judged on a case-by-case basis. Striking the balance, that fine line, between community safety and individual protections around fairness and around due process is, as other members have noted as well in their contributions, undoubtedly complex and undoubtedly challenging, but this piece of legislation aims to strike that balance and to wrestle back some of that fairness within the provisions in this state. I think it is fair to say, listening to contributions from our side of the house and from those opposite, that no member within this place that I have heard thus far is asserting that, upon the potential safe passage of this legislation, of this bill, the work in this space is by any means concluded – in fact the opposite. This is work that certainly we on this side of the house know and understand, as I mentioned, is incredibly complex and is incredibly dynamic. Ensuring that the provisions within this bill but right across government are those strong, sound and sustained investments in education, in health and in community services, giving those within our community the opportunity to be their best from the very earliest days in their life, is something that is very important to this government and indeed should be important to all members of the house.

This work, as I mentioned, is ongoing. We know that currently in Victoria the bail laws do not properly distinguish between low-level, non-violent offending and serious offending that poses a risk to community safety. This has of course led to an increase in remand, particularly for those repeat offenders who may not pose a risk to community safety. Reform of these laws has been noted and discussed in inquiries and with legal stakeholders, most notably the coronial inquest into the death in custody of Veronica Nelson – the Nelson inquest, I should say – which other members have mentioned, and the parliamentary inquiry into Victoria’s criminal justice system, both of which have called for reforms and for some significant changes to be made within this space.

What we know is that when a person is arrested they can apply to be released from custody on bail, which is an agreement between the court and the person that they will return to court at a later stage to respond to the charge. Bail is often granted with conditions – curfews, travel restrictions – as determined by the bail decision maker, but we know when a person is not granted bail or does not apply for bail they are remanded in custody. A person on bail is presumed innocent until proven guilty, meaning there should be a presumption in favour of being given bail unless they are considered to pose a risk to the welfare and safety of the community or they are at risk of absconding. Whether or not a person is granted bail depends on whether the applicable test for granting bail has been satisfied, and we know that the applicable test, as has been mentioned in today’s debate, is one of three tests depending on what the charged offence is, one of those being the unacceptable risk test, one of those being the show compelling reasons test and the third being the exceptional circumstances test.

We know of course that provisions contained within the current framework result in outcomes that should be incredibly troubling, incredibly challenging and incredibly difficult for us all. What the changes within this piece of legislation before the house this afternoon strive to do is go back to creating a system whereby that balance is struck. The bill before us addresses the most urgent identified problems with our current bail laws so that low-level, non-violent offenders are no longer being remanded where they do not pose an unacceptable risk to community safety. This bill implements eight of the 13 recommendations of the Nelson inquest relating to the Bail Act, and the bill introduces a number of changes to the existing features of the Bail Act 1977.

The bill proposes to repeal those aspects of the 2018 reforms for those accused of repeat low-level offending by providing that the reverse onus test will apply to the serious offences specified in schedules in the Bail Act. This will be done by removing the uplift consequences for non-scheduled offences. I am rattling this off quite quickly because I am conscious of time. The bill refines the definition of the unacceptable risk test to make it clearer that the potential risk of minor offending is not enough of a reason to refuse bail unless someone else’s safety or welfare is threatened, and this can capture the property-based offending that impacts welfare such as repeat theft from the same small shop or premises.

We know of course that some of those changes that I have just mentioned go to that exact point that I mentioned earlier in my contribution – the importance of striking a balance between those within our community that suffer a crime committed against them or their family or the premises that they are a part of versus those within the community who find themselves committing an offence. The system needs to be responsive, it needs to be dynamic and it needs to be able to address those concerns that go to the heart of why this bill is before the house, but importantly it also needs to take the advice and the recommendations of the report. But what we continue to say with any bill, with any piece of legislation, with any initiative that comes before the house, is that it is fundamentally important that we are listening to those in areas of expertise, whether that be in health, whether that be in education or whether that be within the justice system. It is critically important to have a set of laws within this state which go to the lived experience, the real everyday experience, of those within our community and those working within the justice system to make sure that we are listening and that we are constantly reviewing.

I will go back to that earlier point – not that I want to speak for the opposition – that what I have heard thus far, certainly from the government side, is that nobody in this house is putting the cue in the rack here. Nobody on this side of the house is saying this work is finished and it is over and this is it. We know and understand the importance of strong, sustained investment. We know and understand the importance of making sure that we are supporting those within our community that are doing it tough, that are doing it hard. But of course making sure we are going back to striking that balance between wanting to provide the safest, the most secure and the fairest community that we can provide is and should be a shared responsibility right across this chamber, the other chamber and our friends within local government and Canberra as well.

We know that having a system, having a framework, that supports those within our community that are finding life incredibly challenging and that do at times commit crimes and do the wrong thing versus ensuring we have a strong sense of community safety, a strong sense of community protection, is what this bill is all about. There are a significant range of amendments within the legislation that time has unfortunately not let me get to, but of course I do want to take the opportunity to commend all of those that have done a significant amount of work to bring this piece of legislation before the house. As part of the Andrews Labor government, I commend this bill to the house.

Roma BRITNELL (South-West Coast) (12:39): I rise to speak on the Bail Amendment Bill 2023. I do so stating at the outset that we understand the complexity of getting the balance right between the person who has committed an offence, and their presumption of innocence, and protecting the community. It is a very difficult balance to strike. I think in the presentation done already by the Shadow Attorney-General he quite eloquently presented a way that we want to work with the government to make sure we get this right. We have seen several amendments to this legislation which demonstrate that over the years there has not always been the right balance.

There were changes back in 2013 that we put into the act to strengthen the bail laws. This government also made some amendments to the act in 2017 after the Bourke Street event. The man, Gargasoulas, was on bail when six people were killed in that tragic, terrible event. You can understand why the strengthening has occurred when you see incidents like that. Now we are here again after the community have seen the report of the investigation into the death of Veronica Nelson. We see that changes are needed and we react, and that is what amendments to acts are like. Often they can be because technologies have advanced that we had not thought through and we need to come back and look at communications acts or things like that. Here we are with amendments due to changes that we have seen from unintended consequences.

Can I say from the outset on the tragic circumstances around Veronica Nelson’s death that no-one in care should be ignored to the point that such a tragic outcome as death occurs. This bill will not change that. We cannot shy away from the fact that we all have an obligation to make sure we step up when we see things that are wrong. That event was quite horrific to read about. It is important to get it right now, but I am not sure we will do that, which is why I support the idea of the textual amendments of my colleague. We will need, I am sure, to review this again, but we need to try to get it right.

When you see the figures for people in remand who have not actually been tried for the crimes they are accused of, the number of those prisoners in remand in 2013 was 956. We saw that rise to 2706 in 2018 – that is a considerable increase. It peaked then in 2021 at the number of 3182. Innocence until proven guilty, the presumption of innocence, is something we hold very dear as a community and want to strive to keep. Having someone in custody when they have not actually been convicted of a crime – they have been accused of a crime – is also difficult. We need to keep the community safe, but we also do not need to be locking people up and finding when they are actually convicted that the sentence they receive is less than what they have just served in remand. That is why this balance is so challenging. We also do not want to see someone who has a not guilty outcome having served time in remand. I think that explains – I hope – why it is so important to get this right.

Whilst there are some good things in this bill and we support them, there are some ideas that we would like the government to consider respectfully. One of those is an amendment in the Legislative Assembly and Council to retain the offence of committing an indictable offence whilst out on bail. This is something we brought in in 2023 –

Michael O’Brien: 2013.

Roma BRITNELL: Sorry, 2013 – that you for that correction, member for Malvern. 2013 – I am getting ahead of myself. Maybe in 2024 we will bring in some –

A member: 2026.

Roma BRITNELL: 2026. Oh well, who knows what could happen – 2026. The years are getting me confused. It might be my age. In 2013 we changed the bail laws to bring in that if somebody breaks their bail conditions and commits an indictable offence, it is an offence to do so. I think that should be retained.

Also, our recommendation is to include eight serious offences on the list requiring a compelling reason test for children accused of certain offences. We are hoping that the government will consider adding these very serious offences to ‘show compelling reason’, which takes it up to another level. It is not the highest level, which is ‘show exceptional circumstances’. This is for things such as rape, rape by compelling sexual penetration – very serious things obviously – sexual penetration of a child under 12 years of age, aggravated home invasion, aggravated carjacking, aggravated burglary, armed robbery and causing serious injury intentionally in circumstances of gross violence.

The last thing we are hoping that the government will consider, and I think this is very reasonable, as are the other two ideas, is that a statutory review be required within 24 months – so two years after this comes into effect – and then the outcomes of that inquiry be released publicly within six months. They are very reasonable suggestions. It is good to see the Parliament working so well together, where the opposition scrutinises and offers suggestions, and we hope the government will take those suggestions up. Some of these things are quite difficult to talk about, especially children committing offences, but when we talk about children we do talk about children up to 17 years and nine months, so we have got to take this into account. We have got to recognise that whilst these conversations are really, really hard, what we do need to do, like with the Veronica Nelson issue, is change the systems within that are failing, not throw the systems out. Putting in care and wraparound services and using the youth justice portfolio is really a better way to get changes. We have got to acknowledge that people do make mistakes and they can do so very badly – that is real – and we have got to acknowledge that we can change things so we do not have recidivism, but we have got to make sure we put those wraparound services in.

I also want to take some time while I am speaking on this bill to thank the bail justice volunteers. Right throughout my electorate I have had the pleasure of meeting some of these people who give their time voluntarily and come out in the middle of the night. One bail justice took me in at 1 o’clock in the morning to show what he does during the night. He comes from about 60 kilometres away. His services are all free. There is no help from anyone to pay for the fuel or get him out of bed in the middle of the night, and I could see how difficult the work they do is. But volunteers really do make up the fabric of our community. In South-West Coast we are very blessed to have very high rates of volunteers when you look at the ABS figures. Towns like Terang particularly do a terrific job with the amount of volunteers they do have, and I want to recognise that in the Parliament, because towns like Terang would not function as well as they do without their volunteers, right through to towns like Heywood, Port Fairy and all of our towns. Often people would not get to appointments without the help of a volunteer driver. The kids who are having challenges at school often have people coming into the schools and giving up their time voluntarily, like those in the Standing Tall in Warrnambool program, created in our region, which supports children in the schools. There are so many extraordinary volunteers that I want to take the time whilst acknowledging the good work that the bail justice volunteers do in my electorate to also recognise many others who do wonderful volunteer work.

I will conclude my remarks by thanking the Shadow Attorney-General and member for Malvern Michael O’Brien for the work he has done on this bill. We hope that the government will take into consideration those very reasonable changes. We look forward to improving the bail system and reviewing it to make sure we have got it right in a couple of years time.

Nina TAYLOR (Albert Park) (12:48): I am pleased to speak to the Bail Amendment Bill 2023, factoring in that bail itself is a very important element of our justice system. Bail decision makers have to make literally thousands of decisions every year. These could never be easy decisions to make, factoring in that there is the potential deprivation of liberty. I have already heard many members of the chamber quite rightly speak to the issue of the presumption of innocence until proven guilty, and of course this has to remain a fundamental tenet of our justice system. I do want to emphasise that we know as a government that our responsibility to the community is to ensure that we take all efforts to protect community safety and that our reforms do not undermine our commitment to this. I just want to emphasise that there is always a clear view to that very important element when we are introducing such delicate and yet carefully considered and prudent reforms that have been informed over many, many years by many different stakeholders.

I will, on that note, pay particular acknowledgement to the advocacy of the family and community of Ms Veronica Nelson, a strong Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman, who obviously tragically passed away while on remand. Her tragic death and story highlight many of the ways our system needs improvement. This is the point I want to get to as to why these reforms are being brought about in the first place. We acknowledge the tremendous advocacy of Veronica’s loved ones, in the wake of her passing, for reforms to our bail system. There is no doubt that those contributions have been critical, among many, to the development of the significant and important reforms that are being brought about today.

When we are thinking about the imperative for these reforms, I think I might like to speak to the issue of Bail Act 1977 offences. Data suggests that the introduction of the two bail breach offences in 2013 has made a substantive contribution to the significant increase in Victoria’s remand population, with a particular impact on women, Aboriginal people and people experiencing disadvantage. Hence we know these amendments are urgently required – and stakeholders have consistently advocated for the repeal of these offences. If we look at the data specifically, the 2019 Crime Statistics Agency Characteristics and Offending of Women in Prison in Victoria, 2012–2018 report found that the proportion of remanded women who faced a reverse onus bail test increased from 37 per cent in 2012 to 79 per cent in 2018, and 29 per cent of women remanded in 2018 faced a reverse onus test only because of these two new offences. The same report found that the number of women entering remand with a Bail Act charge increased from 20.7 per cent to 66.2 per cent from 2012 to 2018.

Whilst it is clear that these offences have increased remand numbers, it is far less clear that these offences do anything to discourage bail breaches, and I think these are important elements that have factored into the consideration of the reforms that are being brought about today. But I do want to state a very important caveat, and that is: it is important to make clear that this is not about reducing accountability for crimes committed, it is about making sure that the consequences of offending are reasonable and proportionate. And if we have that lens when we are looking at these reforms, we can see that it is about seeking to strike the right balance with these reforms.

I note if you breach a condition of bail, you can still be brought back before the court and have your bail revoked. If you commit an indictable offence whilst on bail, you still face charges for committing that offence. The only change here is that we no longer tack on an additional 30-unit summary offence on top of it. So, most importantly, these offences will no longer uplift your bail test, and instead your bail will remain assessed by the appropriate test. We do not want to see people who commit a few small thefts facing the same test as, for instance, someone charged with terrorism. This is not how we want our system to work.

I did just want to address some further matters that have been raised through the, I think, very dignified discussion today. One was regarding the risk of property-based offending and the unacceptable risk test. A risk of property-based offending can still be deemed unacceptable and cause the accused to be remanded. To endanger the safety or welfare of any other person, the accused need not pose a risk of committing a violent or sexual offence. A person who poses a risk of further property-based offending can be remanded if that offending would put the safety or welfare of any person in our community at risk. A further note: the government recognises that property offending negatively impacts how safe people feel in our community. That is why we have made it clear in the bill’s explanatory materials that where the nature of the offending puts people at risk, be it their physical safety or their wellbeing, bail decision makers can exercise the remand option – so I hope that that provides some clarity on that specific point that was raised a little earlier.

I would like to move to the issue of youths in detention. It is important we take this issue from the fundamental premise that it is critical that we do – and I think everyone in the chamber would be in agreement on this, but I do not wish to be overly presumptive – everything possible to prevent our young people getting caught in a cycle of offending. That is the premise from which reforms have been developed.

We know that disproportionate intervention at an early stage can result in children later engaging in more serious recidivist offending, particularly if that intervention involves custody where children are often exposed to antisocial peer influence. Under our current bail system the same test applies to both adults and children despite the justice system holistically taking very different approaches to youth offending. If I cut to the core element here, it is again important to emphasise that the unacceptable risk test ensures that risks to community safety and welfare are key considerations in whether bail can or cannot be granted, and this will remain even for young people. I hope that goes some way to allaying concerns that have been raised on that issue. For example, if a child is accused of home invasion, they can still be remanded where the decision-maker is satisfied that the child poses an unacceptable risk of endangering the safety or welfare of any other person – for example, by conducting further home invasions. The fact that a reverse onus no longer applies does not impact that risk assessment. That is a fairly brief example just to go some way to addressing that concern.

I do want to also speak to the issue of Aboriginal-specific considerations, because there were some concerns raised about that. If we are talking about section 3A of the current Bail Act, it sets out a list of Aboriginal-specific considerations that a bail decision maker must consider where the bail applicant identifies as Aboriginal. I note, just to emphasise, these considerations already exist in the act and were included within the act in recognition that Aboriginal Victorians remain uniquely disadvantaged in our criminal justice system and are over-represented in the remand population. These factors are a critical component in ensuring our justice system takes steps to recognise the over-representation of Aboriginal people in custodial settings, and we want to ensure these factors are fit for this purpose. What became apparent during consultation on the Bail Amendment Bill 2023 was that while there is support for these considerations – and I think that is a really important element when we are discussing this issue – there has been a lack of clarity about how to apply the considerations in a way that would support bail decision makers to best consider the issues faced by Aboriginal people. This is why, as part of the Bail Amendment Bill 2023 reforms, the Aboriginal-specific factors set out in section 3A have been updated. I do not have time to list them out, so I will cut to the chase there.

To be clear and just to round off my discussion in the 20 seconds I have, the same bail tests that apply to non-Aboriginal adults will apply to Aboriginal adults, and the same tests will apply to non-Aboriginal children and Aboriginal children. I think that is also fundamental when we are looking at the sense of how the bill more generally will apply in the community.

Tim READ (Brunswick) (12:58): In the couple of minutes that I have I will just summarise the stance of the Greens towards this bill. We greet it with genuine but qualified relief – and in doing so it is necessary and fitting that I recognise that this Parliament is on the lands of the Wurundjeri people, I pay respects to their elders, whose sovereignty was never ceded, and I echo their calls for treaty, truth and Voice – because bail reform is finally before this Parliament. We have listened to First Nations advocates and communities, and the Greens have advocated for bail law reform for nearly five years in this place since I was first elected. But my relief is also qualified because I know we can do better than this – better for Veronica Nelson, better for all First Nations people and better for all Victorians.

Changes to our bail law over the last decade have meant that the poorest Victorians – the marginalised, those with disabilities, the homeless and other vulnerable groups, particularly First Nations Victorians – are greatly over-represented in our prisons. First Nations people comprise no more than 1 per cent of Victorians, but last month they were 12.7 per cent of or one in eight adult Victorian prisoners. I particularly acknowledge the contribution earlier from the member for Malvern, who took us through the statistics of the rising prison population and the rising proportion of unsentenced prisoners in that population. This is partly about pre-trial detention and partly about representation, and I urge members to return after question time to hear the rest of it.

Sitting suspended 1:00 pm until 2:01 pm.

Business interrupted under sessional orders.