Wednesday, 30 August 2023

Bills

Bail Amendment Bill 2023

Second reading

Debate resumed.

Jess WILSON (Kew) (18:01): I was delighted to briefly start my remarks earlier, but I rise to speak on the Bail Amendment Bill 2023, and can I start by commending the member for Malvern for his considered amendments this morning and for his detailed remarks on this piece of legislation. I know he has taken considerable time over recent weeks to work through the detail of the legislation and to present these considered and important amendments to the house today for the consideration of this chamber.

Before I address the member for Malvern’s amendments I want to touch on the purpose of the bill, which is by and large a very, very sensible piece of justice reform. We had yesterday another piece of justice legislation before the house looking at tidying up and housekeeping and making some important changes to ensure our justice system is fit for purpose, and this bill seeks to do that by amending the Bail Act 1977 and changing the requisite tests applied in making determinations about an individual’s bail. This includes providing that certain offences are no longer to be schedule 2 offences; providing that bail is not to be refused in respect of certain offences; providing the 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 child; repealing the offence of contravening certain conduct conditions whilst on bail; repealing the offence of committing an indictable offence whilst on bail; various changes to updating language used in the act; and expanding the circumstances in which a court must hear a further application for bail.

This bill does recognise that Victoria’s bail laws do require some reform, and I think we have had discussion right around the chamber today to that effect. Since 2013 we have seen a number of bail reforms passed under both the former Liberal government and of course the Labor governments over the past eight years, and these reforms have sought to tighten bail laws and were in many cases direct responses to a number of incidents and to the Bourke Street tragedy of 2017, when six people were tragically killed.

As a consequence of these reforms over the years the number of Victorians charged with criminal offences and held on remand has significantly increased. In some cases this has been warranted, and it is critical that Victorians are not let down by the criminal justice system allowing individuals out on bail when they pose an unacceptable risk to our community. But there are also significant numbers of people who are held on remand in this state and whose incarceration comes at a great cost, of course both personal and financial in terms of taxpayer dollars. It comes at a significant personal cost to those individuals – as well as their families and loved ones – who are remanded, and there are situations where Victorians spend more time in remand than the actual sentence handed down for the crime committed. Indeed the Crime Statistics Agency has stated that in 2018 only 61.7 per cent of women remanded in custody went on to receive a prison sentence, including time served, and that 8.5 per cent of unsentenced women’s charges were not proven in court.

This piece of legislation seeks to deal with some of these issues where we have seen the number of people remanded not meeting the requirements of the justice system. As I said, this significant cost is also one to the Victorian taxpayer when those who end up in remand do not actually pose a material threat to the community. As a general principle it is difficult to argue that people being remanded in circumstances where they do not pose a material danger to the community is justifiable. So I note that the amendments contained in this bill are a response to the call by the coroner to review the Bail Act 1977 following the death of Veronica Nelson while on remand in 2018 after having been refused bail. The coroner found that Veronica’s death was preventable and could have been avoided with reasonable standards of care and diligence on remand. In particular the coronial inquest called for a review of this act, with a view to repealing provisions that may have a disproportionate adverse effect on Aboriginal and Torres Strait Islander people. The coronial inquest found that the current act results in individuals:

… presenting no risk to community safety and that are unlikely to attract a prison sentence, routinely result in remand …

As I said previously, this bill seeks to deal with this issue and largely represents sensible and necessary reform to reduce the number of people held on remand who do not pose a risk to our community. It is absolutely vital as lawmakers we learn the lessons from Veronica’s death, which the coroner has ruled as preventable, and take steps to ensure Aboriginal people are not disproportionately and adversely affected by our bail laws. That is why the Liberal and Nationals coalition will not be opposing this bill.

I do note, however, that I share the member for Malvern’s concerns about whether the provisions contained in this bill strike the right balance between people being remanded unnecessarily on the one hand and ensuring community safety on the other. I know that in my own electorate of Kew the community is rightly concerned about a range of criminal offences, about a range of crimes – burglaries, aggravated burglaries, car theft. Small businesses regularly raise the fact that they are seeing an increase in theft and petty crime. We need to ensure that, while we are seeing more individuals remanded, we also are hearing the concerns of victims of crime and those who have often been a victim of crime due to a repeat offender. The statistics do show a 42 per cent increase, year on year, of a breach of bail conditions.

If passed, this bill will make it significantly less likely that people accused of crimes who fall under certain categories will be held on remand, and while this is an important measure it is essential that some safeguards do remain in place to protect the community from individuals who pose an unacceptable risk to public safety. That is why the member for Malvern has circulated a suite of highly sensible amendments that aim to, first, retain the offence of committing an indictable offence whilst on bail and (2) add eight serious offences to the list that requires a ‘compelling reason’ bail test for children accused of these offences. This includes the crimes 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 the circumstances of gross violence. As you can see, these are all very, very serious crimes, many of which involve the use of a weapon when it comes to aggravated home invasion or aggravated carjacking. It seeks to ensure that we are striking that balance between ensuring those people who are not a threat to our community are not remanded but for those who do pose that unacceptable risk to our public safety the appropriate safeguards are in place.

The third amendment that the member for Malvern has circulated is to mandate a statutorily required review of the effect of the amendments after 24 months of operation. This is to be completed and publicly released within six months. This is an important safeguard across the entire piece of legislation, the amendments here today, to ensure that after them being in place for two years we assess their effectiveness, we make sure that they are meeting the expectations for these changes and that we are seeing the outcomes in the justice system that this piece of legislation aims to achieve.

A review of this piece of legislation, of these amendments – and then making sure that that review is made public and that the community is able to understand the outcomes from this piece of legislation – will be very, very important to ensuring its effectiveness going forward. These amendments aim to keep the intention of the bill, which is of course to avoid unnecessarily holding individuals on remand, while ensuring that there are robust safety measures in place to safeguard the community from unacceptable risks posed by some individuals.

It is imperative that we do strike the right balance between reducing instances of people being held on remand unnecessarily with community safety. It has been the discussion in this place today to ensure that we do strike that balance, that we review the number of reforms that have taken place over the past decade and that we find a solution to these. It is for this reason that we will not oppose this bill. But we have put forward via the member for Malvern a number of amendments that aim to strike that balance to ensure community safety, and we commend these amendments to the house and urge those opposite to give them due consideration.

Nick STAIKOS (Bentleigh) (18:11): It is a pleasure to rise to speak on the Bail Amendment Bill 2023. We have been debating this legislation in the house for the entire day today, and it is certainly striking how many very measured, very considered and very thoughtful contributions have been made by members on both sides of the house, including the member for Kew, who we just heard from. I think that is because members recognise that this area of public policy is very delicate, very complex and an area of public policy that does not have a huge margin of error, because it is about the safety of the community but it is also about the welfare of people who come into contact with our justice system.

If we look at the last 10 years – and we have heard about this a number of times throughout the day – there have been two major tranches of bail reform, following two horrific crimes that shook our state to its core. I was not in Parliament when Jill Meagher was tragically murdered, but I was in Parliament during that Bourke Street tragedy, and I remember we as a house spent the entire day on a condolence motion, such was the scale of that tragedy. In fact one of the victims of Bourke Street was a 10-year-old girl from my electorate, and along with the member for Caulfield I attended her funeral. We know just how important this issue is for that reason.

With the best of intentions both sides of the house supported those bail reforms, and they were important. But we have since had a problem of non-violent people remanded in custody who should not have been. One of those people was Veronica Nelson, and our thoughts are with her family. The community does want people in custody who pose a risk to community safety, and fair enough. But I think the community would also find it unreasonable and unnecessary to deny bail to non-violent people, and many in the community would think that it is unwarranted to revoke bail from someone for breaching bail conditions while on bail for non-violent offences that would probably not result in a custodial sentence anyway.

I think in the best way possible this bill seeks to find that very, very difficult and delicate balance. The bill will address 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. The bill implements eight of the 13 recommendations of the Nelson inquest relating to the Bail Act 1977. The bill introduces several changes to existing features of the Bail Act 1977, and I will briefly go through a few of those examples. The bill repeals the 2018 reforms for those accused of repeat lower level offending by providing that reverse onus tests will apply only to the serious offences. The bill refines the definition of ‘unacceptable risk’ to clarify that minor offending is not enough to refuse bail unless someone else’s safety or welfare is threatened. The bill introduces remand-prohibited offences so that particular offences that are unlikely to result in a prison sentence will no longer enable a person to be refused bail. Those on bail for such offences will still be subject to bail conditions, ensuring community safety is upheld. The bill implements a presumption of bail for children, with exceptions for certain crimes such as terrorism and homicide offences. The bill introduces a requirement on bail decision makers to identify and record the Aboriginal-specific considerations they have regard to when refusing bail to an Aboriginal person, such as systemic factors that have resulted and continue to result in the over-representation of Aboriginal people in the criminal justice system and remand population and the increased risks for Aboriginal people in custody.

I have listened to a number of the contributions throughout the day, including from members opposite, and I did hear the member for Malvern, as lead speaker for the opposition on this bill, introduce some amendments, which mainly relate to child offenders. I also heard particularly the member for Morwell talk about a few incidents in his electorate of youth offending. I will just say this about youth offending, because community safety is obviously paramount and there is some behaviour that we see, including from young people, that is unacceptable. I see some of that in my electorate, and I have people from my electorate who get in touch with me to express their concern about incidents that occur. But this idea that the solution for young people aged 13, 14, 15 or 16 who are offending is to just simply lock them up and remand them in custody – the community actually loses out in the long run. The community loses out in the long run because study after study after study has shown that those young offenders who have been in detention have higher rates of recidivism than those young offenders who were under community-based supervision. It is study after study that shows us that.

I think when it comes to crime we have all just got to take a deep breath and have got to look at this issue in a sensible, logical way, because at the end of the day we are all concerned about community safety. It is a very high priority – absolutely a very high priority. But we have got to look at this issue holistically, and that is what our youth justice system does. The member for Morwell said that at a shopping centre there were a number of young people who were intimidating a security guard, and in that instance the solution cannot be a completely punitive solution. Our youth justice system is about diversion, and our police – and this government has funded more than 3600 extra police – work closely with youth justice workers to make sure that we are actually setting young people on a course back to being good citizens, because we do not want young offenders to end up being adult offenders. The community loses out in the long run, and that is why we have got to take a deep breath and take a measured approach to these issues. I received an email recently from a constituent in response to an unacceptable incident of a robbery at a local supermarket – completely unacceptable. But the email said that these young people should be taken off the streets permanently, and ‘permanently’ was in capital letters. But we have got to be realistic about this. Very few people in this state are incarcerated permanently. The solution is to make those young offenders decent adults. That is what our youth justice system needs to seek to do.

Again I acknowledge all of the members in this house for their very decent, very thoughtful, very measured, very considered contributions, and on these issues we need to see more of that approach as legislators, because it is not about the short-term political sugar hit. For too long it has been about that. Let us have more of these debates, more of these discussions, because at the end of the day that is what will make our community safer. I commend the bill to the house.

Kim O’KEEFFE (Shepparton) (18:21): I rise to speak on the Bail Amendment Bill 2023. The bill seeks to amend the Bail Act 1977 and to make consequential amendments to create a more proportional bail response to low-level offending by refining the more onerous bail test to focus on more serious offending and the gravity of the risks that are presented by a person charged with an offence. In doing so, this bill will assist in ensuring that Victoria’s bail laws strike the appropriate balance between the right to liberty and community safety.

Over the past decade there has been a significant increase in the number of Victorians remanded in custody. The operation of existing bail laws is a major driver of this increase and disproportionately affects Aboriginal people, women, children and people experiencing poverty. I acknowledge the tragic case of Veronica Nelson, who died in 2020, and I express my sincere sympathy to her family, friends and community. At the time of her death Veronica was on remand, having been refused bail for a shop theft related offence. The coronial inquest into Veronica’s death found that Victoria’s bail system had a discriminatory impact on Aboriginal people that resulted in disproportionate rates of remand, with the most significant impact being on Aboriginal women.

The bill makes changes to the tests that are to be applied in making determinations in relation to bail, including by providing that certain offences are no longer to be schedule 2 offences to which certain two-step tests apply, providing that bail is not to be refused in respect of certain offences, subject to exceptions, and providing that two-step tests apply to children in fewer circumstances. The bill makes changes in relation to what bail decision makers must take into account, including by reforming the provisions about what a bail decision maker must take into account when making a determination that relates to an Aboriginal person or a child. It repeals the offence of contravening certain conditions and the offence of committing an indictable offence whilst on bail and makes amendments to clarify, modernise and otherwise improve the act. It provides for sureties to be referred to as ‘bail guarantees’ and ‘bail guarantors’, replaces gendered language, regularises references to bail undertakings and expands the circumstances in which a court must hear a further application for bail.

The amendments in the bill that is before us seek to address the remand of those accused of relatively low-level offending and particular impacts of the Bail Act 1977 on vulnerable groups in the community, such as, for example, as we have said, Aboriginal people and women. Currently we have people in remand who are waiting for their cases to be determined, and in many cases the time in remand has been longer than their sentence, or they may not have been sentenced at all. This is clogging up the system, is costly and is one of the most significant areas being addressed in this bill.

The amendments in this bill refine the bail test to focus on serious alleged offending and serious risks, and they are intended to reduce the over-representation of vulnerable groups in the justice system, as already highlighted. The bill abolishes the double uplift provision which in the past had made it more difficult for people who had committed an offence whilst on bail to be granted bail for a new offence and repeals the bail offences breaching bail conditions and committing further offences while on bail, which have been shown to disproportionately impact women, children and Aboriginal people.

The bill introduces remand prohibited offences which effectively means that people will not be remanded in custody for offences that are unlikely to result in a prison sentence. It changes the rules on making a second bail application so that individuals do not need to prove new facts and circumstances if their first application is denied. It implements a presumption of bail for children with exceptions for certain crimes like terrorism and homicide offences. It requires bail decision makers to record how they have considered specific self-determined Aboriginal considerations when making a decision about bail for an Aboriginal person.

The government last introduced changes to Victoria’s bail laws in 2017 following the tragic events that occurred in the CBD of Melbourne on 20 January of that particular year, when James Gargasoulas murdered six people and injured many others on the streets of Melbourne. At the time of Mr Gargasoulas’s actions in the CBD, he was on bail, and this was not the first time a violent crime had undermined the public confidence of Victorians in the state’s bail system. The Honourable Paul Coghlan QC was asked by the government to conduct an urgent review into the state’s bail laws with the primary aim of increasing community safety and restoring Victorians’ trust in the state’s bail and justice systems.

At the time of Mr Coghlan’s review the government committed to implementing all of the recommendations in his first report. Some of the changes that were made in 2018 had a disproportionate impact on people who were already experiencing significant disadvantage, in particular Aboriginal people, people with disabilities, children and women. This bill refines the bail test to focus on serious alleged offending and serious risk; reduce over-representation of vulnerable groups in Victoria’s justice system, including women, Aboriginal people and children; and balance appropriately the response of the system to accused people with the rights and protections of victim-survivors and the community. Remand custody is designed to keep Victorians safe. It is not to further punish the most vulnerable members of our community. We must ensure that the bail conditions are appropriate to the crime.

In 2018 Shepparton opened the Koori Court, which has provided local Indigenous people who have offended with a comfortable environment, and offenders are supported by their elders and provided with wraparound services. The objective is to reduce reoffending and the cycle of imprisonment. It is one example of trying to address the increasing level of crime. Like many communities, we have rising numbers of criminal offences and victims of crime and an exhausted police workforce.

Today we heard about the addition of amendments to the bill put forward by the member for Malvern, including a two-year review to ensure that in two years time these changes have been effective and that we see the much-needed positive change in bail reform.

John MULLAHY (Glen Waverley) (18:27): It is an honour to rise and speak in favour of the Bail Amendment Bill 2023. This piece of legislation is the product of intensive policy work done by the Attorney-General in the other place and her whole team. From the outset I would like to thank the Attorney-General as well as the Minister for Police; the Minister for Corrections, Minister for Victim Support and Minister for Youth Justice; and also the Parliamentary Secretary for Justice, the member for Albert Park.

I know in many contributions so far my colleagues have addressed their own experiences with the impacts of crime, including that shocking massacre in Bourke Street just a few years ago. I will not give the criminal the honour and notoriety of being named here in this place. Like many, I still remember the day clearly, and it did mark a turning point for bail laws in this state. It showed us the system was not working, and the government committed to large-scale reform. At the time we appointed the Honourable Paul Coghlan QC to lead a review into what needed to change, because no Victorian charged with violent offences should access bail and commit further violent crime and put the safety of our community on the line. Coghlan’s work was twofold, aimed at both improving community safety but also restoring faith and trust in the justice system. In the end we accepted all of Justice Coghlan’s recommendations and went even further, but we cast the net too wide. We acknowledge this mistake and that we have to do better, which is why we are here today making important changes to our bail system, which seeks to balance justice and fairness while protecting our community.

For me, that goal remains deeply personal. In 2008 a dear friend of mine, Wendy Chow, lost her life at the hands of a violent criminal. I will not speak his name in this place either. In the weeks and months after her murder the journey to find justice impacted me deeply, and this bill today is based on that same principle – the importance of just punishment for the crime that is committed. And that punishment must absolutely be proportionate to the impact of that crime. When the government strengthened our bail laws we did cast the net too wide. We took the nuance, compassion and proportionality out of the bail process. This bill rightly returns these principles while ensuring community safety is not compromised.

In its most basic form the number of Victorians who have had bail rejected and been remanded in custody has risen much faster than our crime rate, and that has had deeply human consequences on our most vulnerable Victorians. In particular women, children and First Nations people have borne the brunt of these unintended consequences. They have been held in custody for non-violent minor offences because the benchmark for bail applications for those offences is just as high as for those charged with serious violent offences. Throughout this debate we have heard many examples of the unintended consequences of these bail laws that were adopted. A man was kept in prison overnight because bail was difficult to access, which should be the case for those that have been charged with violent offences, but this man was imprisoned for stealing $2 worth of petrol.

The number of children who have been imprisoned without bail has increased significantly, which is acceptable if those children have committed violent offences, except in many cases they have only committed very minor non-violent offences. We know the deep importance of children maintaining their prosocial connections in the community. For many, being in prison because they cannot access bail after committing a minor offence has been life changing. We have also heard of the unique challenges faced by Aboriginal and Torres Strait Islander people in accessing a just and fair outcome in the bail system. Existing laws do make provisions for the consideration of disadvantages faced by First Nations people in our justice system, but these provisions have been poorly understood and even applied inconsistently. Again, as a consequence, people who committed minor non-violent offences were remanded in custody, and that has had deep consequences for many across our community.

We have heard in depth about the consequences of our bail laws at the Yoorrook Justice Commission, Victoria’s first-ever dedicated truth-telling forum hearing about the injustices faced by First Nations communities. The commission heard evidence that the number of First Nations people entering prison unsentenced as a consequence of previous bail laws rose by 560 per cent in the 10 years to financial year 2019–20. As a government we acknowledge this devastating trend cannot and should not continue. I would like to pay my thanks especially to the loved ones of Veronica Nelson. Thank you for your impassioned advocacy in Veronica’s name and memory for reform and change to our bail laws. Today because of your voices we are creating a more just set of bail laws to keep the community safe and ensure proportionality of punishment in bail decision making. So I would like to take some time and talk about the practical important changes this piece of legislation will usher in.

Most significantly the Bail Amendment Bill changes the test that individuals must go through as part of a bail application. As part of the post Bourke Street reforms these tests were applied to all Victorians who applied for bail, from those who were charged with minor non-violent summary offences all the way to those charged with violent crimes. While violent offenders have been unable to be released on bail, the blanket nature of these tests mean that those who have been charged with non-violent crimes have not been treated proportionately. A prime example I mentioned earlier is of the person who stole $2 of fuel but was remanded in custody because of these very high tests. This bill ensures that serious offences will continue to face the strict reverse onus test, but it will not extend to those less serious, minor offences which pose no risk to community safety. Importantly, the unacceptable risk test will be changed so that an individual’s bail application cannot be knocked back purely on the risk of another offence being committed. Instead, this will need to be examined in proportion to the initial offence and the risk of danger to the community’s safety, because again, while crime is always a serious matter, the reality of stealing $2 of fuel is very different to violent crime. The unacceptable risk test must now take this into account.

Another element of this bill I would like to raise is the strengthened protection for First Nations people and Victoria’s children, who have borne the brunt of the unintended consequences of our strict bail laws. The consequences of an experience in the prison system are often life changing for First Nations people and children. As a matter of principle, these experiences should be avoided when they are not necessary or proportionate. As I mentioned, existing legislation already has provisions where First Nations people should have their unique cultural and personal experiences considered, but these provisions have been poorly understood and inconsistently applied. This bill changes that. Bail decision makers will have to explain how they took these factors into account, thereby strengthening the provisions to protect our most vulnerable Victorians.

Similarly, new provisions will also be introduced so that the bail decision makers better consider the impacts of the imprisonment of children. Fundamentally, the remand of children should be a last resort and only applied proportionately to those who pose a serious threat to community safety, and this bill goes a long way to achieving that and ensuring that children are able to keep their prosocial connections in the community where possible.

There are so many positive reforms in this bill. Unfortunately I cannot go into depth on each of them, but I fundamentally believe this bill is good. I say that as a proud member of the Andrews Labor government but also as someone who has acutely felt the impacts of violent crime in our community. This bill seeks to find a balance, keeping violent offenders out of our community and ensuring bail decisions are proportionate while minimising the injustice faced by our most vulnerable. What this bill certainly does not do is make it easier for those who have committed violent crimes and pose an ongoing risk to the community. Like the person who took the life of my friend Wendy, these individuals deserve to feel the full force of the law. Anything less would be disproportionate and wrong.

I strongly support the Bail Amendment Bill. In my eyes it will help create an appropriate and proportionate balance in future bail decision making without compromising the safety of our community. This bill will improve the justice system for all, and I commend it to the house.

Chris CREWTHER (Mornington) (18:36): I rise today to speak on the Bail Amendment Bill 2023. As my colleague the Shadow Attorney-General and member for Malvern noted, bail has a long history in the criminal justice system, with bail laws attempting to strike the balance, rightly, between not infringing on the liberty of an accused person who is entitled to the presumption of innocence and ensuring that an accused person will attend court and will not interfere with witnesses or commit other offences. Whenever you amend legislation like the Bail Act 1977 there are bound to be inevitable or unforeseen consequences, and we do need therefore to be very careful when moving the needle on the scales in this balancing act. In 2017 and 18 the government tightened a number of bail rules in response to the Bourke Street attack committed by James Gargasoulas, who was at the time on bail. In response the then Attorney-General said:

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

So the measures introduced were of course very stringent in both the 2017 stage 1 changes and the 2018 stage 2 changes. This has understandably led to an increase in the number of people refused bail and held on remand, as the former Attorney-General had predicted. In 2013 there were 956 unsentenced prisoners held on remand. This rose to 2706 people in 2018, and it peaked at 3182 people in 2021. Most recently, in 2022, it was 2763. These changes were and have been criticised by various community groups, including many legal organisations and Aboriginal community groups, who claim that the consequence of the changes was that an increasing number of vulnerable and/or disadvantaged people were held on remand who posed no or little risk to the community.

Tragically, the death of Veronica Nelson and subsequent coronial inquests illustrate the urgency of reforming the Bail Act and, as recommended by the coroner, repealing provisions that have a disproportionate adverse effect on Aboriginal and/or Torres Strait Islander people. At this time I would acknowledge Veronica Nelson and her family and friends and those around her.

As the member for Malvern, the Shadow Attorney-General, also noted, the sentence of time already served has increased as a proportion of sentences from one in nine to one in five. In 20 per cent of cases the judge determined that the time a person had been held on remand was a sufficient sentence for their crime. Of course if the judge had wanted to impose a shorter sentence, the convicted person could not get that time back, and if the accused were to be found not guilty then their time on remand would have been an unnecessary deprivation of their liberty by the state. When the increase in the proportion of time served sentences is viewed with the increasing number of people being held on remand, I believe we run the risk of not properly respecting an accused person’s presumption of innocence.

On the other side of this balancing act of bail reform is making sure the accused person will show up for their court date as well as protecting the community from other crimes that an accused person might commit. That is why I support the targeted and specific amendments proposed by the member for Malvern, which will in limited circumstances make it more difficult for a person to be bailed for serious crimes unless there is a compelling reason. These careful and considered proposed amendments include retention of the offence of committing an indictable offence while on bail, the addition of a compelling reason bail test to eight serious offences for children and the inclusion of a statutorily required review after 24 months. While the government says that the unacceptable risk test will be able to be used to deal with people who continue to offend while on bail, the bill seeks to remove the offence instituted by the former coalition government in Victoria in 2013 of committing an indictable offence while on bail. This offence is a schedule 2 offence, meaning the onus is put on the accused person to show a compelling reason that they should be released on bail, which is the mid-level test of the three bail tests. Given an accused person in a situation of being charged with multiple offences, it makes sense to impose this higher threshold to prevent the likelihood of more offences being committed while on bail.

The amendments we are proposing, as mentioned, also include making sure that the compelling reason test is applied to eight serious offences. This amendment would mean a higher threshold being required to be met before a person under the age of 18 is bailed for 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, aggravated robbery or causing serious injury intentionally in circumstances of gross violence. The current bail test for these charges, which is the lowest threshold bail test, is that the onus is on the prosecution to show that the accused poses an unacceptable risk to the community. Even though this is for children, that includes people aged 17, and given the serious nature of these alleged offences I believe it is appropriate for a higher threshold to apply. The higher threshold test, which is only the mid-level test of the three bail tests, is that the applicant for bail must show compelling reason that they should be bailed.

The reason why we must have a higher threshold test for those under the age of 18 is perhaps illustrated best by the circumstances of James and his family, in my electorate of Mornington. James reached out to me after a home invasion during which a young offender with 140 charges – yes, that is 140 charges – against him ransacked James’s home and car and also stole his car and his wife’s handbag and purse, all while he was home. It should never be the case that a young offender with such an amount of crimes against them – 140 in this case – is roaming the streets. In these extreme cases of course there must be a higher threshold before a young person is bailed. My response to James, and I will reiterate it today, was while we need to focus our attention on preventing low-level young offenders from entering the system in the first place, in the instance of repeat young offenders who have committed serious crimes and evidently have no remorse for those crimes, we need to prioritise community safety and ensure that those offenders are not on the streets continuing to engage in antisocial, criminal behaviour. In some ways we should be directing them to more positive thrills, such as via a program that I believe we should have in Victoria based on the Icelandic Prevention Model now being implemented globally in many nations by Planet Youth, which saw Iceland go from having one of the highest situations of antisocial behaviour, drug and alcohol use and criminal activity in the 1990s to having one of the lowest in the world today.

As I said at the start of my contribution, we need to be careful of unintended consequences when amending legislation. Legislation can have many unintended consequences, and as noted by the Shadow Attorney-General, I am sure that the government did not intend such a gargantuan increase in the number of alleged offenders on bail or remand and it did not intend for low-level alleged criminals accused of, say, minor shoplifting offences to be held on custody for weeks or indeed months. That is why I support the amendment to include a statutorily required review of the effects of this legislation after 24 months and that this review should be completed within six months and be tabled in Parliament. Such a mechanism will be essential in ensuring that we can get the legislation as close to being perfect as we possibly can, properly assessing how the changes we speak about today have panned out in reality and if further changes are needed to protect against any unintended consequences we might have.

On bail and the situation of when we do and do not keep people in custody, it would be remiss of me not to also raise and take the opportunity at this time to mention the parole application that haunted my community recently, that of Frankston serial killer Paul Denyer. I note that the member for Frankston is here in the room with me, and I believe he attended the 25th commemoration a number of years ago with me. I recently had the opportunity to attend the 30th commemoration with family, friends and others in the community. Thankfully Denyer was denied parole earlier this year after serving 30 years for the murder of three young women – Elizabeth Stevens, Deborah Fream and Natalie Russell – and the attempted abduction of Roszsa Toth. However, the current parole system means he can repeatedly continue to apply for parole, putting the victims’ families under great stress every time. On 17 May this year the Liberals and Nationals introduced a private members bill modelled in a similar fashion to legislation applying to Julian Knight and Craig Minogue to keep Denyer behind bars. Unlike the strict changes to bail laws brought about a number of years ago following the Bourke Street murders, which apply to all, this is a specific piece of legislation that would apply just to Denyer. Noting that the government has looked very carefully at this bail legislation, I also at the same time ask them to carefully re-look at that bill.

Anthony CIANFLONE (Pascoe Vale) (18:46): I rise to speak in support of the Bail Amendment Bill 2023, and in doing so I would like to acknowledge the Attorney-General, the Minister for Corrections and the Minister for Police and their respective teams for their work and efforts in putting together this bill.

Victoria’s current bail laws do not properly distinguish between low-level, non-violent offending and serious offending that poses a risk to committee safety. This has led to an increase in remand, particularly for repeat offenders who may not pose a risk to community safety. Essentially this bill is about balance, proportionality and safety both for the wider community and for alleged and vulnerable low-level offenders. The bill introduces a suite of changes to the Bail Act 1977 to ensure our bail laws protect the whole community and better target the use of remand to cases where it is necessary to prevent an unacceptable risk to community safety. The bill incorporates learnings and improvements to bail reforms that were previously introduced in 2013 and 2017 by the Victorian government.

Victoria’s bail system fundamentally operates to allow people charged with an offence to apply to be released from custody until their case is heard in court in accordance with the presumption of innocence. Whether or not a person is granted bail depends on whether the applicable test for granting bail has been satisfied. These tests include the unacceptable risk test, the show compelling reason test and the exceptional circumstances test. If bail is refused, a person is remanded in custody for this period. When bail is granted to an individual, conditions that are set by the court must be followed. These can include, for example, that the accused person will agree to come to court when their case is scheduled to be held and that they will not contact witnesses. Reporting regularly to police is the other measure. Where bail is not granted to an individual and they are incarcerated during the period up to their court case, this time may count towards any prison sentence imposed by the court. That an accused person should be held in a separate area of detention from persons who have been convicted of an offence is another requirement.

However, through the reforms that were introduced in 2013 and 2017 respectively, as a result of two tragic and devastating crimes, Victoria currently has the most stringent bail laws in the country. In 2013, following the tragic murder of Jill Meagher near Hope Street in Brunswick just south of my electorate at the hands of an evil and violent male offender who was on bail at the time, the Bail Act was amended to introduce new bail offences, being committing an indictable offence while on bail and contravening a conduct condition of bail. In 2017, following the Bourke Street tragedy where six people were killed and approximately 30 injured, the Victorian government asked the Honourable Paul Coghlan QC to undertake an urgent review of Victoria’s bail laws, with the aim of further increasing community safety and restoring the public’s trust in the bail and justice systems. The subsequent legislative changes made Victoria’s bail laws, again, the toughest in the country, including by making it more difficult for repeat offenders to get bail, removing the presumption in favour of bail from specific offences and enabling an upward shift – an uplift – in the bail test for people who were charged with reoffending while on bail. This meant that people would face more onerous bail tests intended for more serious offences when committing repeat low-level offences.

When combined, these 2013 and 2017 changes were intended to ensure that offending on bail would have increased consequences for breaching bail requirements; they were designed to restore public confidence in the system. However, the changes which came into effect in 2018 resulted in a significant increase in remand and prison numbers for many vulnerable low-level and non-violent offenders across the community. For example, we have heard numerous cases throughout the debate today, one of which was about a man who was charged with stealing less than $2 worth of petrol, then refused bail and held in custody for nearly 24 hours because the uplift provision meant he faced the most onerous bail test.

The double uplift provision has also resulted in those accused of repeat low-level offences facing the same tough reverse onus bail test as those charged with those most serious of offences, such as murder. Again, for example, a charge of a minor shop theft allegedly committed when a person is already on bail for an earlier charge of shop theft results in the person having to show a compelling reason to be granted bail. This is also the same test that applies to serious offences such as rape. A further minor shop theft allegedly committed on bail then results in the person having to establish exceptional circumstances in order to be granted bail. This is the same test applied to an alleged murderer, yet the total value of these thefts could literally be just a few dollars and the risk to overall community safety very minimal. Yes, of course there should be consequences for committing a crime and, yes, of course there should be consequences for breaching bail, but it is clear that the current consequences are far too harsh and far too broadly applied, because when we start treating a murderer the same as someone potentially stealing a loaf of bread just to survive, you know that the scales of justice are unevenly balanced.

The approach of lumping together low-level offenders with serious and violent-level offenders is not a first, however, for this state or for this country and in fact can be traced back to the very origins of this nation’s postcolonial history that in many ways I believe have long continued to influence the very approach that governments have taken when it comes to crime and justice policy. Let me take everyone back a little bit here. As set out by the National Library of Australia, from January 1788, when the First Fleet arrived at Botany Bay, to the end of convict transportation 80 years later, over 160,000 convicts were transported to Australia. With respect to the First Fleet, there were somewhere between – depending on which records you look at – 1000 and 1100 people who made that voyage. Many did not survive. That voyage consisted of between 750 and 780 convicts. Of these convicts, based on various records I have managed to canvass today, there were around 160 convicts on board who were convicted for murder, but there were also around 20 convicts who were convicted for stealing a handkerchief and 15 convicts who were convicted for stealing a cap, along with many, many others and dozens for much lower level crimes that today would very much be considered petty.

Building on this era, many know that I represent a suburb that for an extremely extended period for better or worse was home to Pentridge Prison, a place that has an extremely dark history and that for well over a century was literally the end of the line when it came to Victoria fulfilling its criminal justice policies from the 1850s right up to its closure in 1997 – almost 150 years. However, the time lines around the establishment of Pentridge are in fact quite profound when, again, it comes to helping to some degree explain the approach of governments over successive decades and persuasions when it comes to informing crime and justice policy. As outlined in Richard Broome’s wonderful Between Two Creeks book, the history of Coburg, it was in December of 1850 that 16 prisoners were marched north by armed wardens from Melbourne jail – the Old Melbourne Gaol today – to establish what became known as the Pentridge stockade, an action which formed the foundation of what eventually went on to become Pentridge Prison, which went on to become greater Melbourne’s main remand and reception prison until its closure in 1997.

However, it was not until July of 1851 that Victoria was actually formally separated from New South Wales and was formally recognised as an independent colony, it was not until 1856 that the Parliament of Victoria, this building, was actually constructed and opened and of course it was not until January 1901 that Victoria was declared a state of the newly federated Commonwealth of Australia. The fact is we had Pentridge before we had the colony of Victoria, we had Pentridge before we had the Parliament of Victoria and we had Pentridge before we had the state of Victoria. Let the record show that we had a prison before we had a Parliament. When you build prisons before parliaments, that has to have some sort of lasting legacy and influence on the way in which governments address crime and justice policy. So whether it was at Botany Bay in New South Wales or Van Diemen’s Land in today’s Tasmania or whether it was in today’s Coburg, which largely grew and evolved around the establishment of Pentridge Prison, the fact is we are a country and a state that has been established on the dispossessed lands of First Nations people and a country where we had prisons before parliaments. I genuinely believe that we as policymakers have a responsibility to be fully aware of this history, especially as we increasingly turn our minds to questions of fairness and justice in this place, including when it comes to the need to modernise bail reform even today.

In this context we now know that the 2013 and 2018 changes to the Bail Act did leave some in our community disproportionately exposed to criminalisation and incarceration. In this respect we now understand and acknowledge that we did get the balance wrong. Reform of these laws has since been called for by several reports, inquiries and legal stakeholders, most notably the coronial inquest into the death in custody of Veronica Nelson, which was investigated via the Nelson inquest, whose tragic death, family and loved ones I acknowledge and I express my sorrow and sympathies to. However, it was also the parliamentary inquiry into Victoria’s criminal justice system which called for reforms to bail.

In this regard I draw the house’s attention to the parliamentary inquiry into Victoria’s criminal justice system’s report of March 2022, which sets out the impacts the changes had on vulnerable community cohorts, and as stated on page 433 of the report, reforms to the system that were introduced in 2013 and 2017:

… have had an impact on the Victoria’s prison population, with a significant increase in numbers of people being remanded in custody. Importantly, the current bail system has had varied negative effects on individuals charged with an offence, and has disproportionately impacted cohorts such as women, Aboriginal and Torres Strait Islander peoples, children and young people and persons with a disability.

Indeed the report made a number of findings that go directly to informing the reforms that are contained in this bill, including finding 37, which found that:

Women, particularly Aboriginal women and women experiencing poverty, are disproportionately …

impacted. Finding 39 says:

Victoria’s bail system must balance the maintenance of community safety with the presumption of innocence for people accused of an offence. Victoria’s criminal justice system does not currently appropriately or fairly balance these objectives.

That is why this bill is so important, and it is why I commend it to the house and support it. In doing so I would like to flag my previous experience of being an advocate for young people for many, many years through the establishment of the Oxygen youth centre, where we literally stood up for the most disadvantaged and vulnerable young people. That is there now on Gaffney Street in Coburg, which the Minister for Youth recently visited with me.

Wayne FARNHAM (Narracan) (18:56): Wasn’t that a lovely history lesson from the member for Pascoe Vale? Very interesting. I am happy to rise today to speak on the Bail Amendment Bill 2023, a bill that this side of the house does not oppose. We do seek some amendments to it, as the member for Malvern expressed earlier, and I might not get time to go to those amendments, but I congratulate the government on bringing forward this bill. I have been saying for quite a while when we talk about the government business program that we need to bring bills to the house that do benefit Victorians and make Victorian lives better – any government. I feel as though in 2013 the Liberal–National government amended bail laws, and then in 2017 after the tragedy in Bourke Street this present government amended bail laws as well. It is about reform and it is about review. With the way society is now and the way things change it is a government’s responsibility to reform and review, and that is what will make our society better.

But it would be remiss of me not to talk about that not long ago – many of you will know this incident – there was a young man that was king-hit outside Crown Casino, and he died. His parents and his family are from my electorate. The fellow that hit him had had three previous assault charges brought against him, and then he cowardly king-hit this man and this young fellow died. Now those parents do not have a son. They will never see grandkids. It was an absolute tragedy. So I think when we talk about bail reform and the way we react as governments we do have to look at the circumstances of the day. The reason I bring this up is because I feel as though when we have repeat offenders we have to look at things very carefully, because with repeat offenders it is the victims that are always suffering, and it is more than one victim most of the time. It is multiple victims. My heart goes out to that family. I know that family very well. I grew up with the parents and the family involved, and I know they are really, really struggling now because of this action.

But I will move on. I will move on to the amendments that our shadow minister put forward. They are commonsense amendments. When we talk about things like rape, rape by compelling sexual penetration, sexual penetration of a child under the age of 12, aggravated home invasion, aggravated carjackings, aggravated burglary and armed robbery, and causing serious injury intentionally in circumstances of gross violence, they are very, very serious crimes. They are not stealing a basketball out of someone’s backyard –

The DEPUTY SPEAKER: Order! I am required under sessional orders to interrupt business now, and the member may continue his speech when the matter returns before the house.

Business interrupted under sessional orders.