Wednesday, 30 August 2023

Bills

Bail Amendment Bill 2023

Second reading

Debate resumed.

Tim READ (Brunswick) (14:54): Before question time I was talking about the over-representation of First Nations people in our prisons. First Nations people comprise no more than 1 per cent of Victorians, but last month they were 12.7 per cent, or one in eight, of adult Victorian prisoners. Although changes to bail laws are the chief reason that Victoria’s Aboriginal incarceration rate has risen to the highest recorded levels in history, I have learned that bail reform was until now essentially a taboo topic in recent Victorian politics.

When we talk about the need for truth we are not only talking about the need to properly recognise the true history of colonisation, we are also talking about that distinctly uncomfortable ground for white parliamentarians, and that is the current policies of governments that continue to discriminate and cause injustice to First Nations Victorians today. It is a coping mechanism for those of us who consider ourselves fair-minded people to only be able to recognise the racial injustice that occurs at a distance. We seem to be more aware of injustices against African Americans in the United States sometimes than those against First Nations Victorians in our own state, which at least statistically are far more discriminatory, but truth-telling, particularly in regard to justice policy, is fortunately now starting. It is occurring in our First Peoples’ Assembly of Victoria, which I commend the government for initiating, along with its elected members and those involved.

Now in this place it is finally time for some truth-telling on justice policy and bail policies of the past decade, and the truth is harsh and brutal. These tragedies did not occur in the past or in some other place, they happened as a direct result of laws passed in this Parliament, first by the Liberal government in 2013 and then by the current Andrews Labor government that followed, particularly the repressive and cruel changes enacted in 2018. The injustice is still occurring as I speak. How could this government – and much of the media, for that matter – remain silent for over five years while this injustice was happening? The answer in one word is ‘politics’. It could have been so different. Contrary to popular opinion, since 1990 and especially since 2000 general crime rates in Australia have trended downwards, including violent crimes, and this is the result not of governments getting tough on crime but of more prosaic factors – an ageing population, liquor control and prices, higher employment and new technology like car immobilisers.

Within this national trend, in 2007 Victoria was the state with the lowest crime and because of its innovative justice system also the lowest imprisonment rates and costs in the nation. In that year, 2007, the Victorian Law Reform Commission also published a report on bail law that had taken 2½ years to complete. It remains today the most comprehensive examination of Victorian bail law that has taken place. It found that the Victorian bail system, involving hundreds of bail decisions every day, was generally effective in balancing the conflict between the right to a presumption of innocence and the need to detain on remand those posing an immediate risk to public safety, but it identified room for improvement. Primarily it found that the Bail Act 1977, then an act of just 53 pages, was far too complicated and confusing, with unnecessary sections and duplicated processes making the process of determining bail more complicated than required.

The review recognised that better bail decisions relied on two factors: (1) ensuring all the relevant information was available to the bail decision maker and (2) ensuring that the Bail Act and the processes for granting or denying bail were easily understood by the bail decision maker, particularly the assessment of risk. The Victorian Law Reform Commission recommended improving the IT and record-keeping systems containing the information that police use for bail decisions and, most importantly, it recommended that the Bail Act should be simplified by removing the complicated reverse onus provisions to centre the bail decision on a single test of unacceptable risk, because at its essence a bail decision really involves one main question: is this person a risk to public safety if they are released on bail? Unnecessary and duplicated tests and processes mean more errors in bail decisions, and that means sometimes people who should not get bail are released and, more often, those that should get bail are imprisoned. But rather than adopting the recommendations of the VLRC to simplify the Bail Act and focus bail decisions on the question of risk, in 2013 the Liberal government went the other way.

Guided by no more than a talkback radio line that people were not taking bail seriously, the Liberal government introduced criminal offences in section 30 of the Bail Act, including for breaches of bail conditions. It soon became the number one offence committed in Victoria, because of course minor breaches of bail conditions have nothing to do with people taking bail seriously or not and everything to do with the fact that, to use a real example, a person with alcoholism and brain damage causing them to regularly be drunk in public is not going to stop drinking just because someone tells them to.

The 2013 amendments also represented the beginning of a new toxic period in our politics, the politicisation of bail, which meant the number of unsentenced people on remand started rising dramatically, particularly First Nations Victorians and those from other disadvantaged groups. More than 90 per cent of the significant increase in our prison population since 2014 was in unsentenced prisoners. Back in 2014, 19 per cent of our prisoners were unsentenced, fewer than one in five. Last month it was 38 per cent, double. For the past few years, it has often been around 44 per cent but above 50 per cent for Aboriginal women.

But it was another event under a different government that spurred the greatest rise in pre-trial detention in history in this state, leaving some to call this period our second convict age. I am not underplaying the tragedy or the enormity of the 2017 Bourke Street massacre, which rightly shocked Victorians, but how typical that the group who ended up feeling the harshest direct and ongoing consequences for that horrendous crime committed by a violent non-Indigenous male were non-violent Indigenous women. Among the many misconceptions about the Coghlan review conducted at that time and the bail changes of 2018 was that this directly addressed the circumstances that led to the Bourke Street perpetrator being granted bail. While Bourke Street may have been the catalyst, those circumstances were not examined until the coronial inquest in 2020. What the Coghlan review and the bail reforms actually sought to address was the public perception that bail was too easy to get, a public perception that Coghlan found, as the VLRC had found roughly a decade earlier, was essentially untrue. But Coghlan also decided that the public’s perception and concerns, despite being false, must be indulged in the context of the tragedy, so the changes in response to Bourke Street were essentially an exercise in public relations, not public safety.

We see those rushed changes in the context of the febrile law and order debate leading up to the 2018 state election. As Bill Clinton showed when passing the Violent Crime Control and Law Enforcement Act in 1994, a progressive government’s perceived need to prove that they are not soft on crime can have the most malevolent long-term consequences for disadvantaged racial groups. But whereas the African gangs disappeared from the news the day after the 2018 election, the poisonous legacy of those bail reforms continued. When we did finally learn the circumstances of the bail decision that led to Bourke Street and the coronial inquest of 2020, it effectively endorsed the VLRC’s 2007 finding – not the Coghlan review, that is. It showed once again that the Bail Act was not properly understood by bail decision makers and police opposing bail, and it was the overcomplicated bail processes and a lack of understanding of the act that overwhelmingly contributed to the mistakes being made in the decision whether or not to grant bail.

The reforms have done exactly the opposite of what was needed, doubling the size of the Bail Act with even more complicated new tests and a multitude of new rules. Surely it does not need a pub test even to tell us that legislation that requires diagrams to try and explain how the multiple types of bail processes should work is not fit for purpose. The government even infamously boasted how complicated these processes were, calling them the most onerous laws in the nation. Today, with the 2018 and now 2022 elections behind them, the government thankfully no longer brags about these laws. Only now, after they have served their political purpose, has the government finally acknowledged the truth. Rather than brag, we can now accept that this was the most discriminatory legislation introduced into this place in decades, because the many pages of amendments did not really change the most important consideration of risk in bail decisions as provided by the unacceptable risk test in the act. But what these onerous provisions ensured was that the most disadvantaged and marginalised would always find the process of getting bail the most difficult, even if they posed a low risk to public safety.

So we had remand rates amongst groups that reflected not their risk to the community or even the seriousness of their offences but the extent of their respective disadvantage, the most remanded groups being in order: at the top, Indigenous children, then non-Indigenous children, then Indigenous women, then non-Indigenous women, then Indigenous men and finally, the least remanded group perversely being the non-Indigenous men who are statistically most responsible for the most serious and violent crimes.

Persevering with such a system created the circumstances that led to the tragic death of Veronica Nelson in 2020. It is a cause for utter shame that it required the frank findings of the coronial inquest into Ms Nelson’s death and the safe navigation of two elections to push this government to finally acknowledge and address some of its mistakes in tampering with bail law five years ago – and I thank Ms Nelson’s family and friends for visiting Parliament and for their efforts to reform the law, supported by the Victorian Aboriginal Legal Service. It should not have taken so long. It was apparent just 12 months after they passed that these laws were an unmitigated disaster and an exercise in discrimination. The number of First Nations women unsentenced in prison does not just double in a year all by itself, and more broadly women do not all of a sudden start being imprisoned at a rate 1½ times higher than that of men. While there is shame that Veronica Nelson was treated so poorly in prison and denied essential health care, the most shameful aspect is, as the Royal Commission into Aboriginal Deaths in Custody explained to us 30 years ago, the fact that she was unnecessarily locked up in the first place for no good reason, just politics.

The Greens will support this bill as it goes some way to correcting these injustices, and we will have a considerable number of further amendments for when this bill moves to the other place. Among these will be to amend the bill to abolish reverse onus provisions and to simplify the process for making bail decisions consistent with the law reform commission’s report and the Poccum’s Law reforms called for I believe by every legal, human rights and First Nations justice stakeholder group in Victoria.

I will now speak to the two amendments that I will introduce in this place. 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.

Tim READ: The amendments I am circulating go to two of the themes of my contribution: the need to recognise some hard truths about the ongoing discrimination in our justice laws and systems, and the need to make sure that if such shameful discrimination occurs again, it cannot be swept under the carpet for years by a government that is expert at managing the message and controlling the agenda, as it was for the last term of Parliament. I know most of those on the government benches are genuinely committed to First Nations rights and justice, and I include the Premier in that group. But when I continually raised the unacceptable level of Aboriginal incarceration over the past five years, the unacceptable level of First Nations women unsentenced and the urgent need to reform the discriminatory bail laws in the last term I was met with nothing but politics and spin. Take when in 2021 I presented bail reform as an urgent matter of public importance for debate in this place. Looking back at that debate on the topic of bail reform, most of the government speakers failed to even mention the word ‘bail’. The couple who did dismissed the need for reform by arguing it was too complex an issue to even engage with. I was accused of ‘political pointscoring’ by having the temerity to raise what all of us must agree was completely unacceptable data showing First Nations overimprisonment under this government. Not one government member had the decency to acknowledge the obvious truth that too many Victorians were in pre-trial detention, that too many of them were First Nations people and women and children and that the bail legislation needed to be fixed. They promoted more silence on First Nations injustice when all this issue needed was a voice and some recognition of the truth.

The amendments I circulate effectively say that a government can never again pretend that there is no crisis in the number of unsentenced prisoners, it cannot try and say that bail laws do not need fixing and it cannot try and bury the evidence of shameful discrimination in these laws, as evidenced by the record number of First Nations Victorians in prison. It is probably not well known that there was an agreement between the government and the Aboriginal Justice Caucus to review the bail reforms of 2018 and their effect on Aboriginal Victorians. The disagreement was also not honoured by the government, and no review has ever been conducted. So we need to legislate this requirement this time. Under these amendments the government will be required to report on the impact of bail reforms to the Parliament after 12 months and at four-yearly intervals after that, because it is hubris to imagine that this time we are fixing the bail laws once and for all. Inevitably we need to see how they work in practice and commit to regular review.

I am also circulating amendments to the guiding principles section of the Bail Act, emphasising a more sophisticated understanding of the relationship between remand and offending rates and the fundamental need for bail decisions not to discriminate against the most disadvantaged and vulnerable. As I remind us, this is currently occurring. I believe these amendments are reasonable and should be supported by all members. We have to show we can do better on justice policy than we have in the recent past. I am relieved to see reform beginning, and I commend these amendments to the house.

Nathan LAMBERT (Preston) (15:10): I do want to pick up on some of the comments of the member for Brunswick. I am not sure we entirely agree with his characterisation of the 2013 and 2018 reforms. I would like to respond to his amendments, although they have only just been circulated, but perhaps to make a general observation that we can insert clauses to review bills into every single bill that goes through this house. The Parliament does have a standing capacity to change legislation. I am sure the Attorney-General is committed to understanding the data. She has made it very clear in fact that she is committed to doing further work in this area. So I am not sure if the circulated amendment is necessary – but that is a brief comment with it only just having been circulated and not having had a chance to read through it in detail.

I do want to, though, come back first and foremost, as I think other government speakers have done, to acknowledging the tragic death of Veronica Nelson. I understand her family have been watching the debate. Their advocacy has been important. We have all read the coroner’s report. We all understand that she was let down in multiple ways, but most importantly I want to acknowledge that she was of course a family member and a loved one and there is nothing any of us can do in this place to change their loss.

I also want to begin by acknowledging the advocacy of some of our local organisations and individuals on this issue. The Fitzroy Legal Service, which some people may know merged with the Darebin community legal service in 2019, supports our local community members with legal advice across a wide range of matters, and they have brought their lived experience and expertise to this debate. Similarly, there is the Victorian Aboriginal Legal Service (VALS), whose headquarters are actually just around the corner from our office on High Street, Preston. We see them on a regular basis in the coffee shops around the corner, and we do note their contribution both to this debate and yesterday’s debate on the Justice Legislation Amendment Bill 2023 and indeed the important ongoing role that they will play under that bill in improving the way that First Nations people are recognised and supported in the justice system. I will return to the specific proposals that those bodies put forward and that the member for Brunswick has just alluded to, but I also want to acknowledge Serena O’Meley and Alison from Gilbert Road and some other local people who have been passionate on this issue.

Like all things or like many things at least in public policy, this issue is not an easy one, because it is effectively an insurance-like situation where we are trying to balance the unlikely but potentially very bad outcomes that can come from people being in custody, being at risk of doing something bad and then going on and doing it, with on the other hand the very real costs both to the individuals but to all of us of remanding people unnecessarily. It is important to note that where you land on that particular question affects Victorians every day.

There are thousands of crimes committed in our state every week. That is the simple truth. There are thousands of people arrested every week. Some of us are lucky enough to live lives that are not heavily or routinely affected by crime, but certainly there are pockets of Preston and Reservoir where I know that crime and the justice system are a common part of people’s lives. We know that in the vast majority of cases people are granted bail, but certainly there are cases, a few per cent, where they are not. I think it is important to note that we also know that the breaching of bail conditions is not an unusual thing to happen. I do not know the exact numbers, but certainly in the vicinity of 10 per cent of people on bail breach their conditions, and people who have been victims of assaults and other serious crimes are often rightfully and legitimately worried about how bail conditions will pan out. In fact previous speakers have touched on some of the very tragic circumstances that have occurred with people on bail.

These laws are important. As a general principle in the Bail Act 1977, a person accused of an offence is entitled to bail unless they pose an unacceptable risk to the community or the administration of justice. I suppose in theory you could write the bill and just leave it at that. I believe that was broadly one of the points that the member for Brunswick was making. But as I have argued in other contexts, terms like ‘unacceptable risk’ are by their nature subjective.

People will and do have different interpretations of that term, and people working in the justice system know that to be the case. You do not always get consistent interpretations. I think we also have to recognise the pressure that we put on bail decision makers if we say that this is entirely upon them. In many other areas of policy we would issue at least guidelines. Indeed, as we have done here, you can put those guidelines into the act with various caveats. That is what we have in the Bail Act 1977 at the moment. I am not entirely convinced by arguments that a bail act must be shorter, not longer. I think having some guidelines in there, as we do with the two schedules – and it is important to note they do not just describe offences; they describe various circumstances around those offences. And then they obviously set out that three-tiered system for managing these decisions. I acknowledge it is unusual, as the member for Brunswick said, to actually have flow charts in there. It is a somewhat unique piece of legislation in that respect.

Within that system there are the deservedly infamous double uplift provisions, which other speakers have touched upon. They have the effect really of making the propensity to breach bail a compulsory factor in the consideration of bail decision makers. Other speakers have addressed this earlier, but I think it is time for those clauses to be reworked and to be stepped back.

Coming to the point where I started, on the 2013 and 2018 reforms, and simplifying things quickly, it was the 2013 reforms that introduced all the propensity for breaching bail arrangements and the 2018 ones that introduced the schedules and effectively those things that said that a serious offence was more likely to lead to someone not being granted bail. I think it is the belief of many in the system, and I think it is evidenced by the statistics on remand that we saw a lot of the growth before 2018.

Indeed most of the things we have been talking about, which is the really tragic situation of having people who committed crimes that possibly would not have attracted a sentence at all, or if they attracted a sentence would have attracted a sentence shorter than the time they spent on remand, were predominantly caused – as I think the member for Brunswick recognised – by those clauses that had the double uplift effect or by the clauses that just directly made breaches of bail conditions reasons not to grant bail.

I could not agree more that there are too many women in the system. Too many First Nations people are being caught in that net, as the Attorney-General said. I completely agree with the member for Ripon’s earlier characterisation that those rules went too far and they were wrong, and I support entirely the clauses in this particular amendment bill that will remove and redesign those bail-related provisions and address minor offences. I certainly support the new differentiated tests for children that go hand in hand with our raising the age reforms. We also of course support the clauses that deal with that unusual and I think unintended circumstance that played a part in Veronica Nelson’s case, where it was actually theoretically in someone’s interest not to be represented at a bail hearing.

In the time that I have got left I do want to draw everyone’s attention to new section 3A(1)(a). There is really important language there about recognising:

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

Noting the member for Brunswick’s circulated amendments, I do think that his first amendment is to a certain degree covered by new section 3A(1), but that by the sounds of it is something that might be debated in the other place.

I want just finally to come to the proposals put forward by the Fitzroy Legal Service and by VALS. There are four key proposals. The first relates to changes to the way we talk about unacceptable risk. I am not sure I have talked to people about whether those changes would actually have a large material effect, but I do think there is some merit, as they have done, in separating out the concepts of a person’s safety and a person’s welfare. We may have reasons to treat them differently. VALS have called for a person to not to be remanded for an offence unlikely to result in a sentence, which, as I have touched on, is an absolutely critical step forward. I think we and VALS and other stakeholders are in complete agreement about the importance of that change being made in the bill we have here today.

They have argued for repealing all three bail offences. As they would note, we are repealing two of them. The third of course is the oldest and the most fundamental. That is the failure to answer bail. I do feel that removing that – there are other mechanisms to achieve the same effect, but it is sort of fundamentally the idea of the bail system and is something that the government is proposing to retain. Finally, they have asked to remove the presumption against bail completely. I suppose that is where they have a key disagreement with the government. I am well aware of the importance of the presumption of innocence, but the reality of the system is that there is a cascading sort of arrangement of you being arrested, charged and convicted.

As I said earlier, I think it is important within those arrangements to provide decision-makers, who have to grant bail or deny bail before there has been a chance to have a full trial, the support of some clear guidelines from us as to how that should take place. That is important, and that is why we support retaining those clear directions, if you like, for serious offences. As the Attorney-General said, it is not the end of the story, but as it stands, it is an important step in the right direction, and I commend this bill to the house.

Annabelle CLEELAND (Euroa) (15:20): I rise today to speak on the Bail Amendment Bill 2023, a bill that we do not oppose, although we urge some amendments that will benefit and protect our communities further. This is a bill that proposes a series of amendments to the Bail Act 1977 to make changes to the requirements which determine bail. These amendments are proposed in a few different ways, including providing that certain offences are no longer to be schedule 2 offences to which certain two-step tests apply, providing that bail is not to be refused in respect of certain offences which are subject to exceptions, providing that two-step tests apply to children in fewer circumstances, making changes to what a bail decision maker must take into account, including determinations relating to an Aboriginal person or a child, repealing the offence of contravening certain conduct conditions while on bail and repealing the offence of committing an indictable offence while on bail. There are also some technical changes, including various changes to update language used in the act and expanding the circumstances in which a court must hear a further application for bail.

This bill follows further amendments to our justice system this week, with the Justice Legislation Amendment Bill 2023 being thoroughly debated in this place yesterday. While that bill was primarily focused on making several fixes to the wording and clarity of various pieces of justice legislation, this bill has a more direct impact on how one area of our justice system operates. Yesterday we spoke in depth about courts, criminals, coroners, police, lawyers, firefighters, juries and tribunals. This bill has a primary focus on the processes and determination of granting bail and the criminal offences adjacent to this process.

When it comes to this bill we are debating today, there are several new considerations that I believe are really important to go over. The bill differentiates adults and children in the way in which tests for bail are applied. Previously there was no distinction. This removes the two-step test for children, except for specified offences. 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, as it does for an adult, as will the unacceptable risk test. There are further considerations for children within this bill, many of which fall on the bail decision makers. This includes the child’s age, maturity and stage of development at the time of the alleged offence; the need to impose on a 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; and the fact that time in custody has been shown to pose further criminal risks for children, including being harmed.

Updating the laws regarding bail is nothing new and something that has been brought forward by both sides of the chamber. It is also quite clear that Victoria’s bail laws are once again in need of reform. Bail laws were tightened by the former coalition government in 2013 through a series of reforms. These reforms included introducing specific offences for contravening certain bail conditions or committing an indictable offence while on bail. Another timely review of our bail laws was encouraged following the Bourke Street tragedy in 2017, and as a consequence bail laws were further tightened in 2017 and 2018. These changes were made with the clear intention of making bail more difficult to attain, preventing further crimes by those on bail, as was seen in the Bourke Street tragedy.

In the 2017 changes we saw a purpose and guiding principles section included in the act, including maximising the safety of the community and persons affected by crime to the greatest extent possible. There was also work done to clarify and expand the list of offences for which the accused must show exceptional circumstances in order to receive bail, known as schedule 1 offences. Similarly, there was clarification and expansion of the list of offences in schedule 2 offences, making the accused show a compelling reason to receive bail. These categories both operate to reverse the onus so that the accused bears the burden of satisfying the decision-maker that bail should be granted. There was also clarification that only a court has the power to grant bail in relation to a schedule 1 offence.

In 2018 more amendments followed to further tighten the bail system in our state. A police remand system was introduced which allowed police to remand a non-vulnerable adult accused of serious crimes for up to 48 hours until a court was available. The tests for bail were again changed, much as this bill today aims to do. This included setting out when each of the unacceptable risk, show compelling reason and show exceptional circumstances tests would apply as well as rewording the unacceptable risk test to emphasise the importance of community safety.

Simply put, since these changes were introduced, the number of Victorians charged with criminal offences and refused bail has significantly increased over recent years. The significant number of people held on remand comes at a cost, both financially and to the person involved. It can be hard to justify some of the circumstances surrounding the remand of an individual when it is clear they do not pose any material danger to the community. The important thing to consider is whether or not this bill gets the balance right.

I would like to explain our proposed amendments expertly spoken about in depth earlier today by the member for Malvern. These include retaining the offence of committing an indictable offence while on bail, the addition of a further eight serious offences to the list that requires a compelling reason bail test for children accused of these offences and, lastly, the mandate of a statutorily required review of the effect of the amendments after 24 months of operation to be completed and publicly released within six months. Based on this government’s track record of managing criminality, policing and the justice system, it is hard to put all of my trust in their decisions. Our justice system has suffered in recent years with backlogs in our courts and tribunals and difficulties with increasing crime in regional areas. Through this we are seeing more and more people remanded, yet further criminal activity continues on our streets. Recent data from the Crime Statistics Agency has shown a rise in both criminal incidents and the number of offences recorded in my region during the past year. In the Mitchell shire, which includes many towns in the Euroa electorate, there has been a 10 per cent rise in criminal incidents and a 13.5 per cent rise in offences recorded. Family violence continues to rise at alarming rates with another 4 per cent increase in the Mitchell shire this year following further rises the year prior. Victim reports continue to surge too with 10 per cent more offences being reported by victims of crime in this region. It is particularly worrying how many of these cases relate to breaches of family violence orders, while there are also an array of theft, assault and drug offences.

Other areas in the Euroa electorate are facing similar issues. Benalla has had a similar jump with criminal incidents well above the state average and alarming news reports in recent weeks. Just two weeks ago the same page of the Benalla Ensign was covering a fatal hit-and-run, a shooting, drug-affected behaviour and break-ins. Some of the bail decisions for these local cases have been wildly inconsistent too. The driver involved in the fatal hit-and-run was granted bail this month after being charged with several offences, including failing to stop and render assistance, perverting the course of justice and driving while disqualified. His actions tragically killed a 16-year-old boy named Caleb Puttyfoot, yet the driver remains on bail and is not expected to be in court again until January. My heart goes out to Caleb’s family and the entire Benalla community who are grieving this tragic loss of a beautiful young man. Earlier this year a drug-affected couple stole a tractor and crashed into the perimeter fence of Puckapunyal military base following a low-speed chase with police. They were denied bail and immediately remanded. These cases relate to just a small part of my electorate. Across the state I am sure there are several cases with similar scenarios.

What we hope to see with these amendments is some consistency in the bail decision-making process. Unfortunately, while all these crimes continue, this government is making a push to remove our towns’ one-person police stations. My electorate is home to some of these in Violet Town, Stanhope and Pyalong, which are among the 98 one-person stations set to be disbanded in favour of hubs in larger regional areas. These small country towns are often too far away from any major centres for a response within a reasonable time, and removing local police puts residents at unnecessary risk. A focus on police recruitment and retention in our towns would go a lot further than gutting our single-officer police stations in rural areas. While we are trying to fix our justice system through these amendments, I want to make it clear that we need more police in our towns and not less.

Mathew HILAKARI (Point Cook) (15:29): I rise to talk on the Bail Amendment Bill 2023. Of course this bill is so important, and I thank the minister for its introduction, because it sets out how we are going to change people’s lives for the better – work that is not going to be completed with this bill but improves people’s lives now. Decisions to refuse bail to a person accused of committing an offence – a person who is presumed innocent – should never be taken lightly. We change people’s lives for the better by ensuring that they are not unnecessarily imprisoned. We change people’s lives for the better by ensuring that they are not unnecessarily spending more time in prison than they would have if they had been sentenced and convicted. We change people’s lives for the better by ensuring that they do not spend time in prison when they are unlikely to be sentenced to a prison term even if convicted. That is why this bill is so important.

The Bail Amendment Bill 2023 gives us the chance to get the balance more right, to make our legal system able to carefully consider the risk posed to the community by those who commit serious offences without unnecessarily remanding those who do not. The bill is so important because those people who have been in prison on remand lose their connections to their families and some people on remand lose access to their children. The bill is so important because those people who have been in prison on remand lose their jobs. Those people who have been in prison on remand can lose their homes. Those people in prison on remand can lose their connections to their communities and their support networks. Families, ongoing work, stable housing and connection to community – these are things that mean an individual is more resilient and less likely to be engaged with the criminal justice system. That is why this bill is important.

This bill goes to the heart of what a good Labor government should do – think deeply about policy, recognise when there is a problem and act, which is exactly what has happened. This government does exactly that in removing the reverse onus test for low-level non-violent offending which is least likely to put the community at risk. Victoria’s current bail laws do not properly distinguish between low-level non-violent offending and serious offending that poses a risk to the community and community safety. This has led to an increase in remand, particularly for repeat offenders who may not pose a risk at all to community safety. We know that repeated offending is not actually dangerous offending, it is in fact symptomatic of disadvantage, and the disruptive impact remand can have on people’s relationships, employment and housing can entrench that disadvantage and be a driver of further offending. What puts people at risk and what is a risk to community safety is repeated imprisonment, often for short terms as a result of repeat low-level crimes, entrenching engagement with the justice system and enhancing that engagement with the justice system, and no-one in our community benefits from that. The people who are most likely to go to prison are those people who have just come out of prison and who have not had the opportunity to step away from the cycle of imprisonment. What is one of the other strong indicators of ending up in prison? It is of course having a parent in prison –imprisonment is a multigenerational driver of crime and disadvantage, a result of a person not being given the best chance to change the direction of their life.

More serious offences retain the reverse onus test – and that is correct, we should do so – keeping people in prison on remand because they are too high a risk to our community. The laws we have today are not fit for purpose, and that is why this amendment is being made. What we have seen with the present bail legislation is that members of our community are kept in jail for too long too often, and that goes on to affect their entire lives, their families and their communities. Those imprisoned on remand are not always prosecuted, and sometimes those charges are withdrawn. Those imprisoned on remand often spend more time in prison than they would have had they been sentenced. That is not just. This is not how a justice system should be carried out, because exclusion from the community is the ultimate sanction government has to put in place against those people who have committed serious crimes in our community, with the committing of crimes being the salient point.

The use of remand has increased rapidly over the last decade. In the decade to 2022 the proportion of unsentenced people in Victorian prisons increased from 20 per cent of the prison population to 42 per cent. The total number of unsentenced prisoners is three times higher than it was 10 years ago. Data suggests that the introduction of two bail-breaching offences in 2013 has made a substantial contribution to the significant increase in Victoria’s remand population, with a particular impact on women, Aboriginal people and people experiencing disadvantage. We know that remand has been affecting women. More than half of Victorian women in prison are unsentenced. We know that Aboriginal people have high levels of imprisonment on remand, almost 50 per cent, and Aboriginals and Torres Strait Islanders make up just 1 per cent of Victoria’s population, yet they comprise more than 12 per cent of the state’s adult prison population. It is a real shame that we are in this position, and as a Parliament and as a community we need to do better.

This bill introduces a requirement on bail decision makers to identify and record the Aboriginal-specific consideration they have regard to when refusing an Aboriginal person bail. The only children in prison, and this is a really sad situation, are often in prison on remand – 83 per cent in 2022, unsentenced, not people who have been charged and convicted, unsentenced. The bill implements a presumption of bail for children, with exceptions for certain crimes such as terrorism and homicide offences. This will entrench custody as a last resort for children, something we should all be striving for, but we will still apply an unacceptability risk test. So if a child is a risk to the community or someone else, they can be held on remand. It is entirely appropriate. The bill will update and strengthen the existing provisions of the Bail Act 1977 that require a bail decision maker to consider additional factors if the applicant for bail is a child or an Aboriginal or Torres Strait Islander. The updated Aboriginal considerations in the bill have been developed in partnership with Aboriginal stakeholders, as is appropriate. The child-specific considerations reflect extensive consultation with legal bodies and bodies representing children and young people – again an appropriate response to a problem in our system.

Law reform has been called for by reports, inquiries and legal stakeholders. I have been an advocate even before I came to this Parliament for exactly the same. The coronial inquest into the death in custody of Veronica Nelson and a parliamentary inquiry into Victoria’s criminal justice system both called for reforms to our bail system. Those reports identified a situation that has become far too common: people charged with repeat low-level, non-violent offences facing more onerous tests for bail, despite their risk to community safety not being the main concern. I want to acknowledge and recognise the advocacy of the family and community around Ms Veronica Nelson. Her tragic death and story highlights many of the ways our system needs improvement. I acknowledge the tremendous advocacy of Veronica’s loved ones in the wake of her passing for the reforms to our bail system. They are to be commended out of a great tragedy. This bill implements eight of the 13 recommendations of the Nelson inquest relating to the Bail Act. By removing uplift from low-level offences, the reverse onus test will no longer be applied to those charged with repeat low-level offending against the Bail Act. Instead the reverse onus test will only apply to adults charged with a very serious offence or those who pose terrorist risks. Addressing the most urgent identified problems with our current bail laws so that low-level and non-violent offenders are no longer being remanded where they do not pose an unacceptable risk to community safety will improve the administration of justice in our state.

Specifically, this bill introduces a number of changes to existing features of the Bail Act 1977, including removing uplift consequences from non-scheduled offences such as shoplifting and graffiti and Bail Act offences. Imagine being put in prison because you stole a couple of things from a couple of shops. Imagine that. That is a very difficult thing for me to accept, and I am so glad that this government is going on to change the bail laws with the Bail Amendment Bill 2023.

We know of course that there is more to be done in relation to criminal justice reform than the legislative change that we are seeing here today, particularly for those that are vulnerable or disadvantaged. There is so much more to be done to take people off the cycle of imprisonment, to see their lives improve and their families’ lives improve. That work will continue. We are committed to that in this place, and I am so pleased to hear that it seems all parties are really committed to that in the contributions that people have made. Again, I thank the minister for this bill and its introduction, because it sets out how we are going to change people’s lives for the better.

James NEWBURY (Brighton) (15:39): I rise to speak on the Bail Amendment Bill 2023. This is an important bill in that it makes changes to an important part of our justice system, and it is a part of our justice system that the Parliament and the broader legal system have grappled with over the recent decade in terms of managing offenders, managing difficult crimes, ensuring that people that should be in jail are in jail or people that should be on remand are on remand and allowing people that should not be on remand to remain in the community. This is another step in that process. It is important because this bill should reflect the balance required in dealing with public policy in this area. We have seen especially over the last 10 years, and from this government over the last five years, changes in terms of bail reforms to the way we deal with accused people. And what we have seen, what the statistics show and what the data show is that there has been an increase in the number of people that are on remand – quite a strong increase in fact, especially over the last 10 years. To be fair to the government, when they introduced reforms some five years ago, they did suppose that there would be an increase, and that has certainly occurred. There has been an increase.

This bill in a number of ways looks to rebalance the way that bail exists in this state. I think any mature conversation about public policy in relation to bail does need to understand that the approach to bail does need to be balanced, but we are also dealing with people who are accused in certain circumstances of very serious crimes – very serious crimes. In my community, which now has the highest number of aggravated burglaries in inner Melbourne, up from not being on the list at all I would imagine ever, this is an issue that is concerning. Aggravated burglaries and home invasions are happening extremely regularly, and they are happening to families in my community.

What is so upsetting about the types of crimes that are occurring is that they are happening to families often as they sleep. Only a couple of days ago I was talking to a mum who in the middle of the night woke up to a sound in her lounge room and came downstairs to find four people invading her home. She has four young children, and hearing her talk about the invasiveness of the crime was deeply touching. I thank her for sharing her story with me and can understand why she felt that that crime would stay with her for life and with her family for life. And I can completely understand the level of invasion she and her family felt.

Sadly, the instance is not a one-off. In fact I am regularly talking to families in my community who have suffered similar crimes – most recently, many will recall, was a young guy getting up in the morning, walking out to his kitchen and finding two men armed with machetes. I mean, can you imagine waking up to get your bowl and your Weeties out in the morning and walking out to the kitchen to find two men with machetes? This is not happening as a one-off in my community. This is happening so regularly, it is hard to be sure that it is not targeted – that there is not a targeted attack on my community, especially in Brighton. And for families who are dealing with those crimes, they are crimes that, frankly, should not occur. We should aim for there to be no crime of this nature.

The coalition has concerns with this bill – not overall, because on balance it is important to make changes in the way that the government is proposing – but there are a couple of elements that I will briefly mention. One of them is the bail reforms and the need for one of our amendments which is being proposed to ensure that certain crimes are considered in a way where when an accused is committing these crimes in a compound way – more than once – the previous crime is properly assessed in terms of bail, because the first thing the police will say to me when I talk to them about home invasions and aggravated burglaries in my community is we have caught the person, which is fantastic, but they may have caught them eight or 10 times prior. So in terms of bail reform it is of course important to understand that we need reform to ensure that the bail system works as we want it to, but we do want to make sure that when it comes to particular crimes, those crimes are properly addressed. One of the ways, as I spoke to, will be the coalition’s proposal to amend the bill.

The other thing the coalition has proposed to do is ensure that there is judicial review. We have seen bail reform a number of times over recent years, so I think it is only prudent to be considering what you are doing and reviewing what you are doing in a measured way. Unfortunately the bill in its current form does not include a review of that nature, so accepting the need for ongoing bail reform it would be only mature to review it. The coalition is proposing to do just that, and I would hope that in good faith the government would consider that amendment as well as the others proposed by the coalition.

I will finish by highlighting the urgency of these issues as they exist in my community, especially some of the crimes this bill seeks to deal with. Over the last 10 years the number of aggravated burglaries has increased by 578 per cent in my community of Brighton – 578 per cent. It is an extraordinary increase over the same time – as an aside – since the government closed the Brighton police station. We have also seen a similar concerning increase in the number of motor vehicle thefts, which has increased 310 per cent over that same time. So whilst it is important for the bail system to appropriately reflect and do what we want it to do, it is also important to understand that when it comes to particular crimes, the bill could be better.

The coalition has proposed an amendment in relation to particular crimes, especially around home invasion and aggravated burglary, where the bill could be better, to ensure that where people commit crimes, those crimes are adequately assessed at time of bail. The most disheartening thing that Victoria Police says to me – and they say it over and over again – is ‘It’s really tough when we catch them again and they get let out again on bail’. It is very disheartening for them. A senior member of Victoria Police recently said to me they believe there are some 200, 300 people in the state that they would say fall into the pool of people committing those crimes. So when we have a bill that seeks to address issues in the bail system, we need to make sure that we look at the 200 to 300 people that Victoria Police have identified and say, ‘Do these reforms unfortunately make it easier for those people to commit further crimes?’

Sarah CONNOLLY (Laverton) (15:49): I too rise to speak on the Bail Amendment Bill 2023. I must admit it was really good to hear the member for Brighton make his contribution and feel the sincerity in that contribution.

James Newbury: Thank you.

Sarah CONNOLLY: You are very welcome. But I will say standing here as I begin to make my contribution, as someone who started off their career in criminal law and as someone who goes out regularly and speaks to youth, youth services and at schools, to local principals – and the three big police stations across Melbourne’s west, just last week – it is very important in this place to think about the way in which you talk, and we all talk, about crime and who is committing these crimes.

The DEPUTY SPEAKER: Through the Chair, member for Laverton.

Sarah CONNOLLY: I am going to point out, because I cannot help myself, that people in my community were targeted mercilessly by the National–Liberal parties and indeed the former federal Liberal government. They said that Tarneit was in fact a place where people were too scared to go out to dinner. Some of those opposite may remember those comments. People in my community remember those comments, reiterated those comments. I have met people in my community that were deeply affected by those opposite’s campaign on them, their race –

James Newbury: On a point of order, Deputy Speaker, on relevance, the bill we are dealing with is the Bail Amendment Bill 2023. I do not think that the bill relates to the last state election, as the member has suggested.

Danny O’Brien: Two state elections ago.

James Newbury: Two state elections ago, excuse me. I would ask you to refer the member back to the bill.

Vicki Ward: On the point of order, Deputy Speaker, there is no point of order. The member is referring to the bill under debate, and she is using historical context, which has been used frequently across the debates on this bill. These incessant interruptions with useless points of order are incredibly disappointing when people are actually trying to get a point across.

The DEPUTY SPEAKER: Order! This has been a wideranging debate. It has been a very civil debate on a sensitive topic, and I appreciate the way in which the debate has been done. I ask the member to return to the bill. There is no point of order.

Sarah CONNOLLY: Thank you, Deputy Speaker. The laws that we are talking about here in this place this afternoon as part of this bill came in the wake of the tragic incident that took place here at Bourke Street. I want to make something very clear in relation to my contribution: the unintended effects of these laws are absolutely a result, in so many respects, of the bipartisan arms race that happens when people, particularly those opposite, decide to run election campaigns – only at election time – on being tough on crime, time and time again.

James Newbury interjected.

Sarah CONNOLLY: Member for Brighton, you were not even elected. You were running in 2018.

The DEPUTY SPEAKER: Through the Chair, member for Laverton.

Sarah CONNOLLY: That was exactly the campaign that you ran in the western suburbs.

James Newbury: On a point of order, Deputy Speaker, firstly it is entirely out of order to refer to ‘you’ and it is quite unparliamentary, but I do refer to your comments about the debate being civil up until this point and I would ask you to refer the member to your previous ruling in relation to that matter.

Paul Edbrooke: On the point of order, Deputy Speaker, I simply put forward that this bill will affect people in the member’s own constituency and also that she is talking about the lived experience of people in her electorate. It is entirely relevant.

Danny O’Brien: Further on the point of order, Deputy Speaker, if it will assist, because I think you have been here for most of the time and certainly I have been here for most of the time, whilst it has been wideranging, people have contained their comments on the bill with respect to bail. It has not been about politics, and it actually should come back to the bill.

The DEPUTY SPEAKER: There is no point of order. However, I encourage the member to stick to the bill in front of the house.

Sarah CONNOLLY: Thank you, Deputy Speaker. I do think it is important to raise the history and the background and the context of how these laws were made and why we are now standing before this house having to amend them again because of previous election campaigns that were run here in this state and across this country about being tough on crime. Thankfully, I have to say, here in this state we have seen what Victorians think of running election campaigns on being tough on crime. Member for Kew, maybe something you can talk to your leader about when we come to the next state election is being tough on crime and how well that ended up for you.

The DEPUTY SPEAKER: Member for Brighton, I have a hunch about what you are going to raise.

James Newbury: On a point of order, Deputy Speaker, on relevance, this bill is not about the next election, and I would ask you to again refer the member back to the bill before the house.

The DEPUTY SPEAKER: Member for Laverton, it would be much appreciated if you could restrain your comments to through the Chair and return to the bill.

Sarah CONNOLLY: Thank you, Deputy Speaker. We know that these bail laws ultimately went too far, which is why now here today we are correcting them. Yes, they had the effect of keeping violent offenders behind bars, but do you know what also happened? The proportion of unsentenced people here in Victorian prisons more than doubled, from 18 per cent 10 years ago to 42 per cent. Now, for Aboriginal women that number skyrocketed to a 243 per cent increase, and of course this resulted in the very tragic death of Veronica Nelson in custody.

Veronica was not in remand for a violent crime. She did not kill anyone. She did not assault or cause grievous bodily harm to anyone. She was on remand for a shoplifting offence. We know that Victorians want to have confidence in their bail system so that they can feel safe in their communities, but a balance needs to be struck so that people who commit minor offences are not stuck in prison or in jail for months on end or forced to prove why they should get bail, instead of the other way around.

The bill makes changes in the following ways. It removes the double uplift provisions that were introduced five years ago. Under the current legislation double uplifting occurs when a person who commits an offence whilst on bail has their new test for bail uplifted to a more onerous offence. This has given rise to a reverse onus test where an accused has to prove why they should be granted bail, as opposed to the prosecution proving that an accused should not be granted bail. This increase has been proved by data. What reports have shown is that back in 2012, 37 per cent of remanded women faced a reverse onus bail test, and this increased to 79 per cent in 2018. That was an increase of 42 per cent. We know that most people who commit low-level offences are not a safety risk to the public. There is no need to keep them on remand, most importantly, for any longer than necessary.

In addition to this, the bill also improves the definition of unacceptable risk, which is used to deny bail to an accused in a way that makes it clearer that a potential risk of minor reoffending is not enough to refuse bail. An exception is carved out for instances where minor reoffending is a risk to someone’s safety or welfare. I think the example cited by the Attorney-General was an instance where someone engaged in repeatedly stealing from a specific store as a potential scenario where bail might not be granted for a minor offence. In addition to this the bill does go ahead and remove what we have called bail offences. Under the current law a person who commits an offence whilst out on bail will not only receive a charge for the crime they have committed but will receive an additional charge as well.

This is an incredibly important bill before the house that is being debated this afternoon. It is something that my community has had a long history with, and it certainly bears the brunt, election upon election, of campaigns and slogans about being tough on crime. It has been really lovely this afternoon to share some of the lived experience, the hurt, the pain, the angst and the absolute embedded racism that comes out of election campaigns where slogans such as ‘tough on crime’ are used to mislead the community and used as a divisive mechanism to hurt communities and mislead communities. I therefore commend the bill to the house.

James Newbury: On a point of order, Deputy Speaker, I would ask you to bring the member back to the bill. The bill is the Bail Amendment Bill, and the contribution was outside the ؘ–

The DEPUTY SPEAKER: Order! The member’s time has expired, as you know.

Business interrupted under sessional orders.