Thursday, 5 October 2023

Bills

Bail Amendment Bill 2023

Second reading

Debate resumed on motion of Harriet Shing:

That the bill be now read a second time.

Evan MULHOLLAND (Northern Metropolitan) (10:01): This is an important bill because it deals with two conflicting values we have in the justice system: the presumption of innocence and the protection of safety in the community. Someone who is charged with a crime has a right to be treated as innocent until proven guilty; remanding someone in custody prior to their day in court is to an extent a denial of that principle of presumption of innocence. We also need to protect the community from people that are in some cases charged with very serious offences and who, in the view of bail decision makers, pose a risk of perpetrating further harm. It is not an easy balance to get right; I will be first to admit that, and I am sure many representatives on all sides of the chamber would admit that.

I would like to thank my friend and colleague the Shadow Attorney-General Michael O’Brien for the hard work and consultation he has done on this bill, particularly the way he has consulted with colleagues, including me, on this bill. Criminal justice reform is something that I have spoken quite passionately about, including in my maiden speech last year. I also put down some thoughts to paper in a book that was released earlier this year called Markets & Prosperity published by Connor Court. What I spoke about was the need to take a different approach to our criminal justice system to differentiate the people that we are afraid of from the people that we are just mad at. This bill I think goes some way to achieving those aims.

The opposition will not oppose this bill. At the start of this parliamentary term under John Pesutto’s leadership the opposition said that we were committed to criminal justice reform. We even created a shadow portfolio for criminal justice reform, which has been led by Brad Battin. I think in our position today you see evidence that we are serious about that. We are actually serious about criminal justice reform, about the qualities of redemption and rehabilitation towards a better life, because it is not only a good moral outcome for society but I think as well a good economic outcome for society.

What we see today in this bill is the government seeking to undo some of the changes it made in 2017 and 2018 in response to the Bourke Street tragedy. Looking at the figures, there is an unquestionable need to reform bail law. The number of unsentenced prisoners has gone up significantly over the past decade. There were 956 unsentenced prisoners in 2013. This rose to 2706 in 2018 and reached a peak of 3182 in 2021. Recent figures have it at 2763.

According to a Sentencing Advisory Council report from 2020, 20 per cent of all prison sentences were time-served prison sentences in 2014. This same group made up only one in nine offenders. That means one in five sentences handed down essentially said that those people deserved a sentence but they had already served it in remand. It is unjust if people serve more time in remand than they are sentenced to. It is even more unjust if they are found to be not guilty.

There is also a need to respond to the findings of the Veronica Nelson inquest. The opposition wants to work constructively with the government. We understand that there is no perfect answer. When the government introduced changes to the Bail Act 1977 following the Bourke Street incident, the then Attorney-General Martin Pakula said:

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

Unfortunately this has had a number of negative consequences. Many people who have been denied bail have deserved it. Many people who do not pose a risk to the community have been denied bail – people accused of shoplifting have been caught up – and that is why the government is making changes. We will not oppose this bill, because we believe it provides a step forward and does contain some sensible changes.

Although we had some concerns with the initial bill proposed by this Labor government, we are glad to see that they have now recognised many of those concerns. We are very glad to see that this government seems to be listening to proposals from the opposition and also listening to deep community concern about this issue.

In terms of its operation, the bill seeks to change the tests that are applied to determine bail. At the moment there are effectively three tests. For the lowest level offences there is a test known as the unacceptable risk test, where the onus is on the prosecution to demonstrate that the person seeking bail would pose an unacceptable risk to the community if they were given bail. The mid-level test is the show compelling reason test, and the onus is on the applicant for bail to show a compelling reason why they should be granted bail. The toughest test is the show exceptional circumstances test, and the onus is on the applicant, who must show exceptional circumstances to warrant them receiving bail.

The bill intends to remove certain offences from schedule 2, and this means the show compelling reason test will no longer apply. It also seeks to provide that bail is not to be refused in respect of certain offences, meaning that bail is essentially automatic in these cases. Whilst the government did originally seek to make the two-step test apply to children in fewer circumstances, this change has now been dropped. Again, we welcome the government finally listening to the community and listening to the opposition. There is quite clearly deep public concern around what is going on in parts of Victoria with crime, particularly with high school-aged children and people being abducted – we saw what happened in Glen Eira – so I am glad the government has listened on this one. The two-step test is either the show exceptional circumstances or the show compelling reason test plus the general unacceptable risk test.

The bill makes changes to what a bail decision maker must take into account when dealing with an Aboriginal person. The government did seek to make changes to what the bail decision maker must take into account when dealing with a child, but again this is no longer the case. The bill seeks to repeal the offence of contravening certain conduct conditions while on bail.

The bill seeks to repeal the offence of committing an indictable offence while on bail. This bill also makes various changes to update the language used in the act and expands the circumstances in which a court must hear a further application for bail. We are concerned about the removal of the offence of committing an indictable offence while on bail, and that is reflected in our amendment, which I will come to.

Under this bill, many offences in the Summary Offences Act 1966 will automatically lead to bail. This seems quite reasonable if we are talking about low-level offences which do not pose a risk to community safety. This is something I have spoken about in the past, and I know Dr Bach has spoken about it in the past. There is no good reason for people who commit very small offences to end up in prison. Prison is not the place for people who have committed low-level offences and who might have gone down the wrong path at some stage in their life. We should not judge them by their worst moment. In fact our system should encourage and rehabilitate people towards a better life.

There are some exceptions to the summary offences changes, which include sexual exposure, common assault, aggravated assault, distribution of intimate images, assaulting emergency workers, harassing witnesses and the like. Division 3 of the bill makes changes to the operation of an unacceptable risk test and clarifies that this test must be applied if the applicant has satisfied the exceptional circumstances test or the compelling reason test. We understand that when considering the unacceptable risk test, it does not require there to be a risk to a particular individual; it can be a risk to anyone in the community. We believe the notion of unacceptable risk should consider the community itself. If a person is going to continually break the law and put the broader community at risk, then we believe it is important that that be the primary consideration under the unacceptable risk test. As the Attorney-General Ms Symes said in the Age of 16 August:

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

While the government originally sought to make a raft of changes, the effect of which would have been to differentiate between adults and children for the first time, again these changes have been dropped. My colleague the Shadow Attorney-General Michael O’Brien proposed amendments to address the shortfalls of this in the other place, which the entire government voted against, funnily enough. But we are very glad that Labor has recognised that the proposed changes could have had very negative consequences and have decided to drop them for the time being. This is particularly on the mind of a lot of Victorians at the moment given the youth crime problem that we have seen of late. I hope in this period of reflection for the government that they do listen to the community and that they do get out into the community. Maybe the Attorney-General and others can visit a few of those small businesses in Brighton or visit schools in Glen Eira to take a temperature check from parents and from kids who are really worried about their safety due to some of the issues that are going on.

The original proposal would have meant that an aggravated carjacking would not attract the show compelling reason test. We certainly believe that this is a serious offence. We certainly do, and we are quite shocked that the government might not believe that an aggravated carjacking is a serious offence.

Part 3 of the bill goes to what bail decision makers must take into account in relation to an Aboriginal person, and there are a significant list of factors that the bail decision maker must consider. We believe bail justices should consider the merits of the case of the person who is in front of them rather than making historical judgements apply at a group level. We live in a great multicultural state. There are many in our migrant community who suffered significantly before coming to Australia, particularly refugees, and there is no reason for individuals to be treated differently because of their ethnicity or other group-based factors.

One concern we have with the bill is the government is seeking to repeal the offence of committing an indictable offence while on bail. In the case of an adult this has meant that the bail test is automatically increased, usually to the show compelling reason test plus the unacceptable risk test. We believe that if a person commits an indictable offence while on bail, there should be a stronger test to get bail again. It makes sense that if someone commits an indictable offence while on bail that that test be increased. I request that my amendments to the bill now be circulated.

Amendments circulated pursuant to standing orders.

Evan MULHOLLAND: An amendment that I was preparing to move when I was putting together this speech would have required that a statutory review of these changes kick in after two years so we could view the effects of the bill. This was an idea proposed by my colleague and friend Mr O’Brien in the other place, and I am very happy that the government has taken up this suggestion. It is another example of the opposition coming to the table on criminal justice reform and being a propositional opposition. I think it was very mature of Mr O’Brien and also very mature of the government to see that, if we had had a statutory review after the Bourke Street changes, we might have been having this conversation earlier. It is important to have that statutory review in place two years after these changes so that it can be reported to Parliament and we can have a good look at and discussion about how these changes have worked. Hopefully we can all come back here in two years and discuss that this bill has worked and had a good effect and we were right to work together to pursue changes.

It is good that the government has agreed to the statutory review. Unfortunately the government did not get it right in 2017 or 18 – to be honest, like the former Liberal and Nationals government did not get it perfectly right in 2013. We know we possibly will not get it right this time, so let us ensure that there is a review so we can come back and say, ‘Maybe this can be tweaked,’ because, as I was saying at the start of this speech, these laws are really difficult and complex. Sometimes the best advice from the best experts, all the public service, all the legal advice you can get and the minds of politicians who have had experience are not enough to see where something might be a little bit flawed, so I think this is a very good move, coming back to this in two years, so that we can have a deep dive on what can be improved.

As I said, the opposition will not oppose this bill. We believe that it represents an improvement to the status quo. Again, I would like to thank my colleague the Shadow Attorney-General Michael O’Brien ‍–

A member: And friend.

Evan MULHOLLAND: and friend, good friend. I thank him for the sensible way he has gone about consulting on this. I would even like to thank the Attorney-General Ms Symes for the way in which she has, in good faith, had many mature discussions with the opposition in regard to these changes, because I do think it is important in some respects, despite our amendments, which we will move, that changes to this be a collective responsibility of members so that there is that buy-in from across the Parliament to these changes. I have spoken a lot on criminal justice reform, and hopefully the changes proposed in this bill will have a real, significant, material impact on people, on making sure we have not got so many people tied up with the courts.

When people speak to me about justice reform, often the first thing that gets spoken about by some on the more activist side – I speak to a lot of people in that space out of interest – is campaigns like raise the age. I think the changes in this bill will do much more than what the raise the age proposal ever will. This is where the real meaty changes can be made, because only a very small number of people either under 12 or under 14 are charged with serious offences. Certainly in the northern suburbs we have seen recently with the case of Declan Cutler that there are people under 14 who have committed pretty serious offences. That was a brutal stabbing that really rocked my community in the northern suburbs, so I would caution the government to take a lot of time to consult before proceeding with something like raising the age. We will have a look at it, sure, but again, it is a very small number and it will not even touch the sides in terms of the criminal justice reform that we really need in order to move our state towards good rehabilitation outcomes and outcomes for people.

You only need to look at the state of Texas and what they have been able to achieve. Over the past decade they have closed about 10 prisons in 10 years. They basically differentiated between violent offenders and non-violent offenders, made sure that people were not going to prison for low-level drug possession, made sure people were not going to prison for non-violent offences, halved the sentences of people convicted of those kinds of offences while they were in prison and invested heavily in training programs for jobs that had skills shortages and things like that. They created intermediate sanction facilities as a form of alternative punishment that was not prison and really invested in the alternative management program. There have been a lot of good things done in Scandinavian countries as well on the justice reform front.

I speak about this because I am passionate about it, not because it is particularly part of the bill. In regard to the government removing children and teens from this bill, the government should take a really sober approach to considering that and also considering any proposals to raise the age of criminal responsibility, which I hope they do, and I also hope they consult with the opposition as constructively on that as they have on this bill.

Given Labor has recognised many of the concerns and issues that we have raised, we hope the amendment that we are putting forward can be considered in good faith.

Jeff BOURMAN (Eastern Victoria) (10:25): I will be brief. I have got to say I am not as convinced as the opposition about these bail reforms, as someone who was here in 2016 when the bail laws got changed and also as someone who has a fair understanding of the bail system as it was some time ago ‍– the principles of bail. The principle of bail is: someone commits a serious offence, they get bail, they do not do anything wrong and it does not matter. The whole point of bail is if you commit an offence or do something wrong or you are a recidivist offender, bail gets revoked and you go into the system.

I am going to keep it fairly short for the simple reason that I will go through questions in the committee stage. I am glad they removed the children’s part for a separate bill; I think that clarifies what is already a murky bill. But I am reserving my opinion on where this goes, because I get the feeling that – this will get through with or without me; I understand that – in X number of years another Parliament will be back after another tragedy doing it again.

John BERGER (Southern Metropolitan) (10:26): I rise today to speak on the Bail Amendment Bill 2023. This is an important piece of legislation. Its purpose is to address and solve the problems with the current bail laws while ensuring there remains a focus on community safety, particularly on those accused of committing various serious offences and those who pose an unacceptable risk to the wider community.

The point of the modern justice system is to ensure that we do not see repeat offenders continue to put other people or themselves at risk. Part of this is addressing the dramatic increase in the use of remand, which has manifested in a disproportionate impact on current bail laws, harming vulnerable and disadvantaged communities. And of course, as we do with all good pieces of legislation from this side of the chamber, we address gaps in the current legislation through procedural and technical amendments.

I commend the work of the Attorney-General, Attorney Symes, and her team at the Department of Justice and Community Safety on this bill. These reforms are designed to make Victoria a safer state, and individuals who have been proven to have no regard for the continued safety of the community will in turn be dealt with appropriately. To that effect, alterations to the laws must be made.

Some history on the bill would be appropriate before getting into the substance of the bill. In 2018 there was the introduction of several bail reforms in response to the trend of perpetrators out on bail breaching their bail requirements and then committing violent or dangerous crimes, the most infamous of these offences being the Bourke Street massacre. The attack was deliberate and undeniably evil. In the wake of the Bourke Street massacre it was clear that action needed to be taken to prevent something like that from happening again. An inquiry headed by Justice Paul Coghlan was conducted into any improvements to be made to the Victorian bail laws that could prevent reoffences during the bail period. The legislative solution that was found was to introduce a reverse onus bail test on a lot more offences, meaning that the accused must prove that there is a compelling reason for bail to be granted. In addition to this, senior police officers were given powers to remand an individual for up to 48 hours until there is a court available to hear and judge their bail application. This was intended to solely target serious offences, restore the public’s confidence in all Victorian bail systems and increase community safety.

Our laws must be designed to ensure that something like this never happens again. That is clear. Victorians need a legal system that is tough on crime. We should all feel safe living in a state with a zero-tolerance policy for reoffending. It should be a comfort to know that your police force is equipped to protect you against the few individuals that seek to undermine the safety of the community, but for different groups in Victoria the harsh nature of these bail laws is not a comfort or a cause to feel protected. Unfortunately, there has been an unforeseen consequence of these harsh bail laws. Without sugar-coating it, some of the most vulnerable groups of Victorians have been disproportionately disadvantaged by these bail laws. The most concerning are the statistics attached to the remand incarceration of Aboriginal women, which has over recent years doubled.

This was highlighted earlier this year by the coroner’s report into the tragic death of Veronica Nelson after she was held on remand for shoplifting. The coroner’s report into Veronica Nelson’s death found that it was an unacceptable outcome and highlighted just how important it is to get these bail reforms right and foolproof. There has been a long process of community and stakeholder consultation to ensure that this bill gets it right. Nelson’s death was a harsh reminder that it needs to be done. Something must be done to rectify the impact that bail laws are having on disadvantaged communities and minor offenders and make Victoria a safer and fairer place. We should be a state that has zero tolerance for crime, but we should not be a state that traumatises individuals before they have been proven guilty.

Another way that this bill addresses injustice is in relation to the reverse onus bail test. Under the bill’s amendments to the principal act, the onerous process targets only serious and violent offenders to ensure those accused of relatively minor charges do not find themselves unnecessarily being subjected to the high bail standard we have in Victoria. Additionally, the Bail Bill will refine and clarify the definition of ‘unacceptable risk’. Under the new definition it will be clear and evident that the potential risk of committing a minor offence does not satisfy as a reason to refuse bail alone. Bail must only be refused if there is a potential risk of causing harm or threat to someone’s safety or welfare. This may also, in some very exceptional cases, extend to a property crime, but only in a scenario that affects welfare. These amendments will also repeal sections of the Bail Act 1977 relating to bail-related offences, specifically the breaching of bail conditions and the committing of further offences whilst on bail. That is not to say that breaching bail conditions will no longer lead to adverse consequences for the offender; it simply will no longer exist in Victorian law as a standalone offence. If an accused was to breach their bail conditions, they would see consequences like having their bail revoked. Materially the outcome will be the same.

The next reform is the introduction of the remand-prohibited offences. This means that the specific offences within the Summary Offences Act 1966 that are extremely unlikely to result in a prison sentence will no longer enable or justify an accused to be put on remand. Individuals accused of prohibited offences will still have to apply for bail and be subject to the bail conditions set out by the courts to ensure that community safety is upheld.

The next amendment will reform the Bail Act to allow persons who have had their bail application rejected to make a second application without having to add new factors or circumstances to their case. This is to prevent and discourage, by way of removing incentive, individuals appearing without legal representation for their first bail application with the purpose of ensuring that they will receive a second bail application. If an individual believes they have wrongly been judged, they should in principle have the right to appeal. Exceptions will be made in the unlikely but all too possible situation that certain crimes of very high severity are committed, such as terrorism or homicide.

As we do with all pieces of legislation that we draft, we have consulted widely. That includes across all of government, members of Parliament, with the courts, the wider justice system, Victoria Legal Aid and the Criminal Bar Association, the Office of Public Prosecutions, the victims of crime commissioner, the Federation of Community Legal Centres and the Victorian Equal Opportunity and Human Rights Commission. We have also consulted with the Aboriginal Justice Caucus, the Law Institute of Victoria and the Police Association Victoria, the Commission for Children and Young People and the Victorian Aboriginal Legal Service.

The Attorney has long flagged the need for reform. In March this year the Attorney announced that our bail laws would be reformed with a particular focus on addressing the changes that were brought in in 2018 and their disproportionate impact on Aboriginal people and other vulnerable people.

It is also important to acknowledge that for a lot of communities crime is a very complex issue that warrants a holistic approach. This means that bail laws are not the be-all and end-all to the issues of crime and high incarceration rates, nor will conditions that lead to high incarceration rates result in a safer Victoria. Instead it is important for our justice system to focus on rehabilitation.

The Allan Labor government has attempted to contribute to and assist in supporting and creating a preventative approach to crime as opposed to the traditional punitive measures we have seen in the past. This is done in several specific ways, but the overarching concept behind the approach to preventing crime in communities that experience higher rates of incarceration is identifying the root cause of criminal activity. It is often a lot more complicated than negligence or malice. Quality of life is a big factor in motivating crime, as are crimes of despair. We know that education is a way out. Programs like free TAFE, which offer young people enrichment, education and employability and bring positive changes to the lives of our First Nations Victorians and those marginalised communities, are vital. Much focus has been placed on our Big Build projects to ensure that employing First Nations labourers and apprentices, giving First Nations Victorians employment opportunities, is a key to addressing economic disparity. It does not begin and end with bail laws.

The data shows that the introduction of the two bail breach offences in 2013 have made a substantive contribution to the significant increase in Victoria’s remand population, with a particular impact on women as well as First Nations people and those experiencing disadvantage. In fact in 2019 the Crime Statistics Agency’s Characteristics and Offending of Women in Prison in Victoria report found that the proportion of remanded women who faced a reverse onus bail test increased from 37 per cent in 2012 to 79 per cent in 2018, and 29 per cent of women remanded in 2018 faced a reverse onus test only because of these two new offences. While this clearly demonstrates that these offences have increased remand, it is far less evident that the offences do anything to discourage bail breaches. Our criminal justice system already provides an appropriate bail response to bail breaches and offending whilst on bail, and these offences are not necessary to achieve that end. This bill is about making sure that the consequences of offending are reasonable and proportional. The holistic approach will yield the best opportunity and the best good for the community. It will keep people out of jail, make them productive members of society and bring an immense degree of improvement to their own lives.

To wrap up, the bill implements recommendations 8 to 13 from the Nelson inquiry relating to the Bail Act 1977. It also introduces several changes to existing features of the original legislation, and it repeals the Bail Amendment Act 2013 offences of breaching bail conditions and committing further offences whilst on bail. Make no mistake, this conduct will still have consequences, but they are no longer standalone offences.

The bill also makes further amendments to clarify and modernise and otherwise improve the act. Under the current law, an accused cannot make a second application for bail without demonstrating that new facts or circumstances have arisen since bail was refused or revoked or they were not legally represented at their first hearing. In practice this has accused people making self-represented applications on the advice of their lawyers out of a concern that that will exclude them from making a better, well-prepared application with more time. This contributes to a high number of short-term remands in the system and is an issue the coroner has pointed to needing to be addressed following the death of Veronica Nelson. The Bail Amendment Bill will also allow an accused person to make a second legally represented bail application before the court without having established new facts or circumstances, with the aim of reducing unnecessary short stays in remand.

Unrepresented people consuming the court’s time by making an application without legal representation or making an application because they do not feel they have to do it on their own results in people who may otherwise obtain bail being subject to a short remand. This is highly disruptive to a person’s life, their housing, parenting responsibility and employment, and short remands are highly disruptive to our prison system. This reform will encourage an accused person to make a legal representation application at the earliest opportunity, as there is no longer to be a concern about meeting the new facts or circumstances test in order to make a second legally represented application.

Part of the role as a member of Parliament is to reflect on the views of our community. We are democratically elected after all, and the importance of this is to ensure that our laws keep up to date with the changing views of our society. I look forward to the opposition joining us in support of this bill, and I understand they are broadly in support of our work.

Matthew BACH (North-Eastern Metropolitan) (10:39): I am pleased to rise to also make a contribution on this important bill. I am particularly pleased to rise to do so following the very thoughtful contributions of both Mr Mulholland and Mr Berger, and I find myself agreeing with much of what these gentlemen have to say. I welcome bail reform. I think bail reform is necessary. I note the previous comments of the Attorney-General, very honest comments of the Attorney-General, reasonable comments of the Attorney-General, about the process that by its very nature was rushed some years ago following the tragedy down the road and the need to look again at how these systems and structures are operating. As Mr Berger pointed out, we know that our bail laws have not been operating in an optimal way. We have seen too many people, oftentimes vulnerable people, swept up. So I am very pleased that the Attorney-General has been looking at bail reform for some time now, and I echo then the comments of Mr Mulholland.

There is some reporting in the media today that had there not been a change of Premier we may not have seen such a constructive approach. I am not sure about that, and I am not sure of the extent to which this sets a precedent. But I personally welcomed the initial amendments that were put forward by Mr O’Brien in the other place. I thought they were sensible amendments, and as it turns out there has been a process with the Attorney-General – it sounds like a constructive process – and the government has changed its position. Like Mr Mulholland, I will not criticise the government for doing so. I do think, noting the comments of the Attorney-General about previous changes and the need to review the impact of those changes, that it is particularly important that the government has seen the merit in locking in a review process. Mr Berger is also correct when he says that there are a whole series of very significant issues in our justice system today, and bail plays a very important part. But, as he said, we should not presume that bail and bail reform will be some type of panacea. I think there is much agreement around the chamber that our court backlogs are far too long, that we see far too many people on remand in prison today, incarcerated despite the fact that no crime has been proven against them, and far too many vulnerable people, and these are issues that I think members of the government want to see addressed, members of the crossbench want to see addressed and on this side of the chamber we also want to see addressed.

Bail plays an important part in that broader effort, but it is not the only piece of the puzzle. In my mind there are three other things that we can look at as part of this broader effort, and the first is law reform. Mr Mulholland has spoken in the past about drug law reform, and I agree with many of the things that he said. I have been interested in last few days to note the shambolic political goings-on in America. One of the best things that President Trump did was to enact some significant drug law reform, and my view is if Mr Trump can do it, for goodness sake, why can’t we? There are too many people in prison for personal drug offences and too many people on remand for personal drug offences. As a liberal I could not care less what adults choose to do in their free time as long as they are not harming others. I do not personally use drugs. I tried cannabis a couple of times and did not really like it. But if other people after a hard day’s work want to sit outside and smoke a joint, on a personal level as a liberal I could not care less, so I do hope that in my absence, members of this chamber will continue to discuss law reform, in particular drug law reform, including considering the decriminalisation of the use of cannabis.

A second really important piece of the puzzle is building the capacity of alternatives to incarceration. You cannot just flip a switch, as much as I would like that. Mr Berger said that the government had consulted with the Commission for Children and Young People, and I am thrilled that that is the case. That is excellent. As you know, Minister Mary Wooldridge set up that commission when I was her adviser for child protection. I am pleased the government consulted with the commission. Undoubtably what the commission would have said is what it has said publicly for a long period of time and what I have said for a long period of time, and that is we must end this dreadful pipeline of vulnerable people from child protection into youth justice and then into the adult system – vulnerable Indigenous people, other vulnerable people.

As a Liberal, I believe deeply that as individuals we have agency and we can turn our lives around, but I also think government has a huge capacity to crush people. If you read any number of the harrowing reports of the children’s commission – I would recommend Our Youth, Our Way in particular about young Indigenous people – I think you would come to that conclusion too. At the moment, sadly, what is happening is that through decisions of government massive numbers of vulnerable people are being funnelled into government institutions – our very own gulag archipelago, right here in Victoria in 2023 – to then be brutalised by the state. There is a pipeline – this is what the children’s commissioner says – from child protection, in particular residential care, which I would shut down yesterday if I could, through into youth justice then into the adult system. If you want to blow up the gulag archipelago, and I do, you must invest heavily in alternative approaches. I would recommend the government go back to a fabulous report from Social Ventures Australia in 2017 into these alternative approaches.

To be fair to the government, there is some small investment in some of these approaches, like functional family therapy – a fabulous form of group therapy that is really hard on participants. It is really hard in particular on deadbeat dads. This is not an easy way out. There is some small investment from the government in that program. I welcome that, but that investment is not currently at scale. The Social Ventures report from 2017 discusses a range of evidence-based early care and prevention programs that I think could allow us in due course to entirely dismantle the gulag archipelago.

Thirdly, we need far faster processing. I believe deeply in the separation of powers, but it is reasonable from time to time to give some advice to our friends in the judiciary. To our friends in the judiciary today I would say, ‘Please, put down the cat, get out of the pyjamas, get out of your living room and get back to court.’ It honestly is scandalous that today so few members of the judiciary are actually back in court. It is a key reason, not often discussed, for our massive backlogs. It was former Liberal attorneys-general like Jan Wade who first introduced various forms of technology into our courtrooms. She introduced excellent reforms so that women who were alleged victims of sexual violence did not have to front up to court but could use television technologies. Those are excellent reforms. There are still many minor matters that we can be dealing with online, and we talked about this in a different bill earlier this week, but all important matters should be dealt with in person in court. They can actually be dealt with far more expeditiously that way. For that to happen we need to encourage our friends in the judiciary to get back to work.

So I welcome this bill. I am pleased that the government has seen fit to make changes. I would acknowledge both Mr O’Brien and the Attorney-General in that process. As Mr Mulholland said, we will seek to make one further constructive change, and I would recommend that change also to all members of the chamber.

Katherine COPSEY (Southern Metropolitan) (10:49): There are many matters that we are asked to consider and vote on in this place, some of which are more urgent and important than others. Reforming Victoria’s broken bail system is both. Our current bail laws are ineffective, they are discriminatory and they are unnecessarily punitive, especially towards First Nations communities and vulnerable groups, such as children and disabled people. Depriving a citizen of their liberty is one of the most serious powers a government holds. Any government that does so, and those of us who hold scrutiny over those governments, must ensure that the highest standards of accountability are brought to bear when exercising that power. We must be rigorous in using human rights frameworks.

We should, firstly, reiterate that bail is a fundamental right under the rule of law, however much in our public debates in recent years it has morphed into being seen as a privilege. Since changes were made to bail laws in 2014 and in 2018 Victoria has experienced and is experiencing an absolute incarceration crisis – an unprecedented growth in prisoner numbers. More than one in three people currently in prison in Victoria have not been sentenced. It is not that we are experiencing more crime – that growth in prisoner numbers comes overwhelmingly from the number of persons who are denied bail and then remanded in custody. Those reforms were called a complete and unmitigated disaster by the coroner investigating the tragic passing of Veronica Nelson, a proud Aboriginal woman who died in police custody in this state.

Today we have seen a last-minute backflip, posing very worrying questions about this government’s commitment to evidence-based policy, to First Nations justice and to the upcoming treaty process. We do look forward to seeing the much-wanted youth justice bill when it emerges early next year.

As the Royal Commission into Aboriginal Deaths in Custody report was so clear in stating in 1991 – 32 years ago – reducing First Nations deaths in custody will only be achieved when governments use prison as a last resort. But in the three decades since that report those lessons have not been heeded here in Victoria. All we have witnessed is bowing to law and order debates, not following expert advice on reducing crime rates and spending billions of dollars on prison strategies that do not work, and we have seen that reflex again today with the government backtracking on its own commitment to children. The situation today is proof of what the royal commissioners concluded 32 years ago: that First Nations people will continue to die of preventable deaths disproportionately in custody until governments finally stop locking them up unnecessarily. Our bail and remand system is a clear culprit in this debacle.

It is very clear that today this debate is about bail, but it is absolutely a debate about deaths in custody as well. The downward spiral of bail reforms in the last decade has driven an incarceration crisis within First Nations communities as Aboriginal and Torres Strait Islander peoples are disproportionately represented among those remanded. It is notable, and it is heartbreaking in this fortnight when voting starts on the referendum on the Voice, that Indigenous status interacts with gender, with Indigenous women being particularly over-represented among those held on remand in this state.

The debate is also about facts and about evidence. With regard to children, the data tells us that youth offending is incredibly rare and that early contact with our prison system harms kids. Today’s weak backflip will continue to expose kids unnecessarily to contact with the prison system. Troublingly, we must acknowledge the evidence that denying bail and imprisoning people unnecessarily does make it more likely that they will reoffend in future. This includes kids. Many experts, including our own Sentencing Advisory Council, have observed that the remand environment is criminogenic – literally it is producing more criminal behaviour. It is a sad irony that imprisoning people before trial, notionally to improve community safety outcomes, or perception of such, may actually contribute later to offending that places the community at risk – exactly the opposite of what we are seeking to do with a functional justice system.

Both the coalition’s 2013 reforms and the government’s reforms in 2018 have resulted in higher subsequent recidivism rates and no overall decrease in serious offending rates. Currently 38 per cent of adult prisoners in Victoria are being held on remand. Moreover, as I have said, that impact is gendered, with more than 40 per cent of women in Victorian prisons now there on remand. Their most common alleged offences are not violent crimes but property and drug offences. The vast majority of those women also have children, and that means that those children are then far more likely to end up in contact with our justice system and imprisoned themselves. That perpetuates the intergenerational cycle. It will impact disproportionately on First Nations people, and it is currently likely to continue well beyond the current generation of adults. Shockingly, across the 12-month period from May 2022 to May 2023 the number of Aboriginal people in Victoria’s prisons grew by nearly 20 per cent. If there is one statistic that represents why urgent action on our broken bail laws is needed, it is that one.

I do acknowledge the Attorney’s work bringing forward this very long awaited bill and at this time. The Greens recognise that this bill does attempt to rectify some of the issues that exist in our bail system, and it is good to see some positive reforms, including removal of two bail offences and the strengthening of special considerations for Aboriginal people. I would really like today to acknowledge the strong advocacy of First Nations voices and in particular Veronica Nelson’s family, who should be credited with the steps forward that will be achieved through this bill.

Attorney, we are listening closely when you state that you have confidence that the reforms in this bill will reduce the numbers of people unnecessarily in prison on remand, and we sincerely hope that this is true. That will be the true test of this bill. We will continue to ask questions about the progress of the reforms and seek data to explore their efficacy. Particularly we hope that the changes proposed will reduce the number of First Nations prisoners proportionally in Victoria, and we condemn the delay in enacting measures to protect young people from the discriminatory impact of the reverse onus tests and reduce their contact with the prison system.

Legal experts, First Nations advocates, the Yoorrook Justice Commission, human rights organisations and the Victorian Law Reform Commission, together with the Royal Commission into Aboriginal Deaths in Custody – all of these experts – along with communities and families affected have been crystal clear in telling the government the elements that are required for bail reform for years and for decades, and it was brought into very sharp focus in January with the release of the findings of the inquest into the death of Veronica Nelson. The coroner found that the current bail laws are discriminatory towards First Nations people and that they are incompatible with Victoria’s charter of human rights. Among other recommendations, a key finding from the coroner was that the reverse onus regime should be repealed and a presumption in favour of bail restored.

Even though the Greens will support this bill, we do so clear in the understanding that what the government has presented today is only a partial solution after such a long wait, and more work does remain to be done to achieve proper bail reform. We believe that the risk of a tragedy like Veronica’s passing being repeated should be significantly reduced – eliminated – not just partially reduced. To make the bill better, the Greens have a number of amendments to improve it, and I ask that those amendments under my name be circulated now.

Amendments circulated pursuant to standing orders.

Katherine COPSEY: I will speak in detail about our amendments during the committee stage, but broadly the Greens amendments are: firstly, a requirement to report to Parliament on the impacts of the bail reforms after 12 months and at four-yearly intervals after that – and I do acknowledge and welcome the government’s acknowledgement that a two-year review is necessary in relation to these reforms; secondly, a requirement for an annual report from the department, from Court Services Victoria and from the chief commissioners containing information on bail decisions; thirdly, a change to the guiding principles of the act, emphasising a more sophisticated understanding of the relationship between remand and reoffending rates and the fundamental need for bail decisions not to discriminate against the disadvantaged and most vulnerable; and finally, repeal of the two reverse onus tests, exceptional circumstances and compelling reasons, and the replacement of those with a simplified unacceptable risk test that focuses the attention of bail decision makers on the core question.

To conclude, we all know that there are a lot of voices with strongly held opinions about bail and how best to reform it. The voices that resonate most strongly, even though they are softly spoken, are those of Veronica Nelson’s family. When this bill was being debated in the other place a month ago, Uncle Percy and Aunty Donna came to the steps of Parliament. They called on the government and they called on us in this Parliament to go further and to do better than what the current bill offers. Veronica’s mother, Aunty Donna, said:

I am relieved that our lawmakers are finally changing bail laws. This is a positive step forward, but it doesn’t go far enough.

Uncle Percy Lovett, Veronica’s partner, said:

The system needs to change so that other people don’t go through the same thing –

… ask the politicians to make the government’s proposal better. These changes are about saving lives and I reckon politicians should remember that.

The Greens are absolutely listening to the voices of legal, human rights and First Nations experts and also to the families affected by Victoria’s discriminatory bail laws. We will continue to push for the reform we need to fix these laws and for the further steps we need on important issues like raising the age, improved decision-making regarding bail for children, independent police oversight and First Nations justice reform generally.

Jacinta ERMACORA (Western Victoria) (11:01): I am pleased to speak on the amendments being made to the Bail Act 1977 through the Bail Amendment Bill 2023. Bail is a complex component of the legal system because bail decision makers are obliged to strike a balance between the presumption of innocence and greater community protection. Listening to Ms Copsey I was reminded of the glib statement made by Gracie Hart, the character played by Sandra Bullock, in Miss Congeniality where when asked ‘What do you want most in the world?’ she said, ‘World peace,’ and then glibly sort of quipped, ‘If I can’t have that, harsher penalties for bail violators.’ If only it was as simple as that. I think we have taken the journey along the way with different bail laws over the years only to discover that this is complex and highly sensitive, and yes, it is all about saving lives and keeping our communities safe.

I would like to acknowledge that my speech here this morning includes reference to an Aboriginal person who is no longer alive. We have seen in Victoria’s history the challenge that many bail decision makers have faced when trying to achieve that balance. We have seen cases where a person on bail has killed and, at the other end of the scale, we have seen cases where someone on remand in jail has died, so two ends of the spectrum. Again, an example of how this is not a straightforward, emotional, harsher punishment solution. We have had an outbreak of collaboration across the chamber on a number of points related to this bill as a result, and I think Minister Symes ought to be congratulated, as Mr Mulholland said, for that.

In the past there have been cases that have led to tragedy. The benefit of hindsight is it allows us to see that some accused persons should not have been bailed for varied reasons, such as already being on bail for moderately serious offending. An example of this is the tragedy that struck Bourke Street in January 2017 when six people lost their lives. The perpetrator was on bail, granted by a bail justice despite opposition from Victoria Police. At that time the Andrews Labor government recognised our bail system needed to be seriously overhauled.

Within days the government initiated a review, led by Justice Coghlan, and subsequently established a night court at the Melbourne Magistrates’ Court to continue to hear bail and remand cases, shifting the responsibility of important bail decisions back to magistrates. The amendments to the Bail Act enacted in 2018 introduced more stringent circumstances for accused persons to be granted bail for more serious offences. The purpose was to restore public confidence in Victoria’s bail system while implementing other recommendations of the Coghlan review. These are the toughest bail laws in Australia. Mainly in circumstances where an accused person was already on bail or undergoing a community correction order, the test to be granted bail would be uplifted to a higher threshold and therefore a higher standard that a decision-maker must be satisfied of in order to grant bail.

I want to acknowledge with great respect the views of people who have been so catastrophically affected by horrific crimes. This bill takes the opportunity to address the nuance and complexity of the bail system and how it works and that most certainly not all crimes are equal. What the government could not foresee in 2018 was that more vulnerable Victorians would unintentionally fall into this higher threshold. These people include women, children with disabilities and Aboriginal people, and as a result numerous reports, inquiries and legal stakeholders have advocated for a re-evaluation of these laws.

The coroner has most recently joined the call for reform following the death of Veronica Nelson, who was on remand at the time of passing away in custody. Veronica Nelson was a strong Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman. She was connected to her culture and close to her family and community. Veronica’s nickname was Poccum, based on the way she pronounced ‘possum’ as a child. As reported in the Guardian on 28 January 2023, at the time of her death on 2 January 2020 Nelson, 37, had spent three days in Melbourne’s Dame Phyllis Frost Centre, Victoria’s maximum security women’s prison, after being arrested on suspicion of shoplifting. She was in jail after appearing in court without a lawyer and being refused bail. It was unlikely she would have been sentenced to prison if she had been convicted of the offences for which she was arrested. It is saddening that such a tragic event had to occur to institute change, but the coronial inquest into her death in custody led to reconsideration of the bail laws after finding that First Nations people represented a grossly disproportionate number of people on remand. This disproportionate number of Indigenous people in prison or on remand must change.

I know there are real, practical measures that need to be addressed in outer regional and rural areas. I recently met with the Warrnambool branch of the Victorian Aboriginal Legal Service and had a most informative roundtable discussion. Xavier Farrelly, regional practice lead for Barwon South West region criminal law with VALS, told me of the reality of the situation on the ground. He said that there are not many lawyers in Warrnambool that are available to do bail applications, which can see the level of cultural understanding vary, and that the VALS office in Warrnambool only recently opened. Before that, there were no culturally safe legal services for them to use.

Mark Messer, Warrnambool client support officer and Wurundjeri man at VALS, further pointed out that the shortage of solicitors in Warrnambool does make it very difficult for people to gain access to receive help and assistance for their bail applications. He went on to say that, being a smaller community, sometimes there could be a conflict of interest for the VALS Warrnambool solicitors, which makes it difficult for Aboriginal people too. Finding a firm which it not conflicted can take several hours. Also, with this shortage of solicitors in remote and rural areas, this issue is common between all firms in that jurisdiction. He went on to say that this can be stressful for Aboriginal and Torres Strait Islander people while in cells at the police station waiting for assistance. It can cause anxiety and depression, and the client is left feeling lost and without hope while they wait for assistance. The process can be particularly difficult for clients with low reading and writing skills.

I do give those voices because I think those voices are important. We can only imagine the difficulties this places on already vulnerable people who may not have the ability to and/or the resources to re-enter the community as easily as others, and this is after being held even on remand. Coupled with unintended consequences of a more stringent bail system, there is little hope for these people to access rehabilitation support.

Nerita Waight, CEO of VALS, a Yorta Yorta and Narrandjeri woman, explained that the current bail system is overly complex and is trapping people living with disadvantage in the legal system for low-level alleged offending, like minor shoplifting. Putting people in prison because of alleged offending related to poverty, disability or mental health issues is not making communities safer. It is putting people on a path to being in a cycle of incarceration for their whole life so that we continue to spend more money on prisons and less on essential services to lift communities up. That is what the Bail Amendment Bill 2023 will help to resolve.

This is achieved through several key components. Revising the uplifting reverse onus test: the bill introduces a revised approach to uplifting the applicable test for bail from the less onerous test to the onerous test for persons accused of repeated low-level offences. Instead the Bail Act will have a balanced and fairer categorisation of offences to specifically target those accused of serious offending. Primarily this is achieved by removing the offences of non-scheduled offences and Bail Act offences from the schedules in the Bail Act. In doing so, the accused persons who may commit an offence such as shop theft whilst on bail may not see themselves facing an exceptional circumstances test to be granted bail due to the consequential offence of committing an indictable offence whilst on bail. In other words, this is a risk approach that weighs up the level of risk and harm to the community. This aims to avoid remanding those accused of relatively minor offences who would not pose an unacceptable risk to the community.

This will not remove the ability of the court to revoke a person’s bail if they have committed further offending whilst on bail or failed to comply with their conditions of bail. The bail decision maker must also be satisfied that the accused person does not pose an unacceptable risk of reoffending or endangering the community. However, the bill seeks to amend the unacceptable risk test to prevent a person being remanded due to the decision-maker perceiving that the accused person may commit minor offending if granted bail. This is achieved by refining the test so that the risk of minor non-violent offending cannot be the sole reason for remanding an accused.

The bill also makes a number of changes to Victorian offences. The first is significant to the bail decision making process. The bill repeals the offences of breaching bail conditions and committing further offences whilst on bail. These offences have often catapulted an accused person into a higher reverse onus bail threshold and consequently led to remand for relatively minor and non-violent offending. In addition to this, the bill introduces remand-prohibited offences, which are specified offences in the Summary Offences Act 1966 which are unlikely to result in a term of imprisonment. Of course nothing prevents the imposition of bail conditions to ensure community safety is upheld.

The bill also allows a person whose bail application has been rejected to make a second application for bail without having to show new facts and circumstances. This seeks to remove the incentive for applicants to try and secure a second application by appearing without a legal representative at their first application.

The bill requires a bail decision maker who has decided to reject an Aboriginal person’s bail application to record how they have considered specific self-determined Aboriginal considerations such as a person’s culture, kinship and family situation. As the VALS website points out, they see these reforms as the first steps. They acknowledge that it is good to see some significant wins off the back of the advocacy by Veronica Nelson’s family, including the removal of two bail offences. The VALS website also acknowledges the work done by our Attorney-General Jaclyn Symes and the consultation that they were included in.

Georgie CROZIER (Southern Metropolitan) (11:16): I rise to speak to the Bail Amendment Bill 2023. I want to make some comments in relation to this bill and acknowledge the work of the Shadow Attorney-General Michael O’Brien in relation to improving what has been put before the Parliament and the discussions he has had with the Attorney-General, and I am pleased that the government has seen sense and is adopting sensible amendments proposed by Mr O’Brien.

What this bill does is make some sensible changes and seek to ensure a balance between the fundamental principle of presumption of innocence and the competing interest of protecting the community from the risk of significant harm posed by people charged with serious crimes. As we know, when we were in government we significantly tightened the bail laws back in 2013. These reforms included introducing specific offences of contravening certain bail conditions and committing an indictable offence whilst on bail. That is an issue that we still are very concerned about, and I will come to that point in a moment.

We have had some tragedy in this state. In direct response to the appalling incidents in Bourke Street in 2017 involving James Gargasoulas and the tragedy that unfolded that he was responsible for whilst out on bail, the Labor government commissioned former Director of Public Prosecutions and Supreme Court judge the Honourable Paul Coghlan QC at the time to review Victoria’s bail laws. That being done, the government has now come up with this bill, as has been highlighted by my colleague Mr Mulholland in relation to what those changes actually mean.

I want to quickly address some of the concerns around what the government has raised. I was just listening to one of the government speakers Ms Ermacora talking about some of the issues that have been raised specifically around the Victorian Aboriginal Legal Service and the tragedy that she referred to. Whilst we have obviously sympathy for that particular case, I think it needs to be understood that when justice is being provided, it should be based on the merit of the case rather than making judgements on historical wrongs and then applying that in a group context, because you cannot judge individual issues based on what has happened in the past. We have many migrants and refugees that have come to this state who have experienced significant trauma in their lives, and what does it mean for them if you are applying the test that you have just spoken about? I do think there has to be some common sense in this and looking at the individual cases based on merit rather than looking at historical wrongs and applying that across the board.

In any case, I want to just go to what the government has agreed to after discussions with the Shadow Attorney-General Michael O’Brien. They have listened to the concerns that have been raised by the coalition, and the government’s decision to walk away from their proposed changes to bail laws for minors is only a small first step in putting community safety first.

We on this side of the house are very concerned about the rising crime rate, particularly amongst young offenders, which we have seen in our community in the last period of time. I have just come from a meeting talking to people who were talking about the horrific crimes that are occurring across the state in relation to arson attacks. Twenty chop-chop shops, or whatever they are called, have been torched, and somebody in my electorate of Southern Metro was assassinated just a few weeks ago in relation to those crimes. This is what is happening. It is not isolated to Victoria, this particular issue – it is across the eastern seaboard of Australia – but Victoria has the worst statistics in relation to these arson attacks and what is going on. There is just an enormous amount of crime going on in the state, and we have got a real concern around community safety. That is why we make it and will continue to make it a priority. This bill would have seen young offenders facing the state’s weakest tests for bail, even for some of the most serious of offences, and that is why we proposed wholesale amendments in response to these dangerous proposals.

I just want to state that by retaining the status quo for the youth bail laws the Labor government appears to have finally responded to community concern about crime. They are actually listening – unlike the former Premier Daniel Andrews, who just would refuse to consult and listen to anyone, as we know and as members of his own government know. Finally this government, under the premiership of Ms Allan, hopefully will do a bit more consulting and listening to the community because of those concerns that I have spoken about.

I am very pleased that the government has agreed to accept the opposition’s proposal for a statutory review of bail changes after two years of operation, another commonsense measure that should have been put into the original legislation – it was not. As I said, these measures that have been proposed by the coalition that the government is now accepting are a good move, but we do think there needs to be the retention of a standalone offence of committing an indictable offence whilst on bail. That is a serious concern for us, and Mr Mulholland spoke about that particular amendment in his speech. We will be moving that amendment, and I hope that members of the house will support that sensible move too. As we know, we have seen some shocking youth crime incidents in recent weeks, and weakening youth bail laws was always a dangerous move by the Labor government. They have not been listening to community concerns, but at least they have accepted and adopted those amendments – a couple of them – put forward by Mr O’Brien. We hope that more can be done in this important space.

Ryan BATCHELOR (Southern Metropolitan) (11:24): I am very pleased to rise and speak on this bail reform legislation. As many speakers in their contributions to this debate have indicated, it is a very important piece of legislation. There has been considerable attention given to what is happening in our justice system by many fora in recent years. There have been a series of changes made over the course of the last few years. What this legislation does is in part reflect on the effects of some of those changes; listen to what the government is being told by experts, including by the coroner; and seek to amend the arrangements to bring some more balance to them and to ensure that some of the negative consequences that clearly were being experienced by many in the community, particularly those who are vulnerable and particularly First Nations people, are addressed.

One of the clear instigating incidents for the review of these bail laws was undoubtedly the very tragic death of Veronica Nelson, who in January 2020 died alone in her cell in a maximum security women’s prison here in Victoria after she was taken into police custody after being arrested for shoplifting and was refused bail. Ms Nelson, as others have said, was a proud Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman, who cried for help over and over again in her cell over a long and extended period of time. Anyone who has taken the time to read the coroner’s report cannot but be affected by what is on those pages and what it must have been like to get to the point that she got to there because she had been refused bail on a shoplifting offence. I do not think anyone who read that judgement and understands not only that particular incident but also what Ms Nelson’s experience represents more broadly can in any way suggest that action does not need to be taken. That is what the coroner found. Coroner Simon McGregor found that Ms Nelson’s death in custody was preventable and called for an urgent review of the Bail Act 1977.

The Labor government has listened to these calls for change. This legislation will make our bail laws fairer for vulnerable and disadvantaged people while continuing to take an appropriately tough approach to those who pose a serious risk to Victorians. We obviously acknowledge that the 2018 changes that were made largely in response to a series of incidents by people who had previously been on bail were made with the intention of restoring some confidence in the bail system, but the introduction of what amounted to the toughest laws in country has caused a significant increase in the numbers of Victorians who are on remand.

Being on remand means that, whilst accused of an offence, you are yet to be convicted of an offence, so we have rapidly increasing numbers of incarcerated Victorians who have not been convicted of any offence. The number of unsentenced people in Victoria recently was as high as 42 per cent of the total prison population, compared to less than 20 per cent a decade ago, and these proportions are higher amongst Aboriginal and Torres Strait Islander people and amongst women. Just a couple of months ago the latest prison statistics showed that the number of Aboriginal women entering prison each year has grown by just under 250 per cent over the last decade, and these laws will address those issues. The negative consequences of this incarceration on remand are significant and can include family separation, trauma and perpetuating cycles of homelessness, unemployment and reincarceration. Remand should be used in appropriate circumstances but not to further punish the most vulnerable members of the community.

These laws will enable Victorians accused but not convicted of low-level crimes to secure bail more easily and significantly reduce the number of people in prison who are unlikely to receive a prison sentence for a crime. I think that is a particularly important note because there are many who are on remand, denied bail under the existing arrangements, who are there accused of offences where they are unlikely to receive a sentence of incarceration should they be found guilty. That set of circumstances is obviously one that should trouble many and one which these laws seek to address, because we know that in many circumstances repeated low-level offending does not pose the sort of safety risk that the concept of remand is designed to ensure for the broader community. What it will do is significantly reduce the number of people – particularly women, particularly Aboriginal people ‍– who are entering remand and being incarcerated and who do not pose a community safety risk.

As I said, incarceration on remand for some offences does more harm than good. One of the effects, particularly for women and their families, is that incarceration on remand for lower level offences and offences that do not pose a serious threat to community safety can separate women from their families and their children, can further exacerbate cycles of homelessness and can increase the likelihood of their children entering the child protection and out-of-home care systems. That is something that we need to address, and these laws we hope will do that. According to the Federation of Community Legal Centres in Victoria, between 70 and 90 per cent of women on remand have experienced violence or abuse and needed support, and keeping them on remand can exacerbate and increase unnecessary suffering, often reinforcing those offending behaviours without the sorts of support and rehabilitation that are afforded to many who are actually incarcerated under sentence. Many of the forms of support that are available to those people who have actually been convicted of crimes often are not to those who are held in unsentenced terms. Worryingly, in June 2021 over half of those in Victoria’s women’s prisons were unsentenced. That is a significant number compared to around 20 per cent in 2011.

The other important reason that we need to address these, and it is something that was brought up in the debate yesterday on the motion on public drunkenness, is that having appropriate bail laws is one of the other key recommendations of the Royal Commission into Aboriginal Deaths in Custody which, as we know, started its work in 1987, handed down its report in 1991 and yet still has relevance, searing relevance, to our justice policymaking here in 2023. That royal commission report recommended that imprisonment only be used as a last resort and that governments ‘revise any criteria which inappropriately restrict the granting of bail to Aboriginal people’.

That royal commission and its evidence demonstrated that there was a problem with bail then. What we have seen in Victoria, in recent years but also prior to that, is that that problem endures. These steps in the legislation that is before us today are another example of this government listening, going back, reading and hearing what was said by those in the past, and we know more broadly that listening to the voices of Aboriginal people is an exceptionally important part of making laws, and better laws, in areas that affect them. So what we hope is that these bail laws, the bail changes that we are making today, will work to increase confidence that the justice system is not unfairly discriminating against Aboriginal people, ensure that incarceration is used as a last resort and provide some degree of hope that what happened to Veronica Nelson and what happened to many Aboriginal people before her does not get repeated.

The government hopes the amendments to the Bail Act will effectively achieve a proportionate balance between the protection of the community and the protection of the human rights of those accused of crimes. We do need, as always in addressing legislation in the criminal justice field, to try to get the balance right between those important concepts and to provide the opportunity for lower level offenders to break free of the cycle of crime that can be perpetuated, particularly when people do spend extended periods incarcerated. There is great opportunity for us to get our policy settings better attuned to ensure that those who are accused of lower level crimes and who do not pose a risk to community safety, instead of being imprisoned on remand awaiting their day in court, can be out in the community receiving access to better support services through housing, mental health or alcohol and other drug supports and that we are not taking the wrong approach and thinking that the best thing we could possibly do is incarcerate people in these sorts of circumstances before they are convicted of any crimes.

The bill goes further. It will do a range of things, including redefining the definition of ‘unacceptable risk’ to make it clear that the potential risk of minor offending is not enough to refuse bail unless someone else’s safety or welfare is threatened. It will repeal the Bail Act offences of breaching bail conditions and committing further offences while on bail, which means that while that conduct will still have consequences, such as existing bail being revoked, there will no longer be separate and standalone offences that in effect just add to a person’s rap sheet. The bill will introduce remand-prohibited offences for particular offences set out in the Summary Offences Act 1966 so that those which are unlikely to result in a prison sentence once the court process has concluded will no longer enable a person to be remanded in first place. That will help address that concern we have that some people are ending up being incarcerated when they are accused of crimes that would not result in a term of incarceration were they convicted, which to many is just an absurd set of circumstances that this legislation is seeking to redress. It will also do things such as allow a person whose bail application has been rejected to make a second bail application without having to show new facts and circumstances, removing the incentive for applicants to try and secure a second application by appearing without legal representation at the first application.

It will also strengthen and update specific conditions that apply to bail decisions for Aboriginal people and their children. One of the other important things that I will just mention before I finish up is that it will require a bail decision maker who has decided to reject an Aboriginal person’s bail application to record how they have considered specific self-determined Aboriginal considerations such as culture, kinship and family. We think, broadly, that introducing these changes to the Bail Act will ensure that our bail laws protect the community where there is risk but ensure that those charged with low-level, non-violent offences are not subject to incarceration, which can lead to serious problems. We think that the balance struck by these laws is the right one.

Rachel PAYNE (South-Eastern Metropolitan) (11:39): I rise to speak to the Bail Amendment Bill 2023. Ten years ago only 17.9 per cent of all people in Victorian prisons were unsentenced or, in other words, had not been granted bail by the court while awaiting their hearing. By June last year that number had more than doubled to a startling 42.2 per cent. This was the cumulative effect of amendments to the Bail Act 1977 in 2013, 2016, 2017 and 2018. As the government has acknowledged, the amendments that flowed from the Coghlan review in particular were the cause of those drastic rises in the remand population, with unequal impacts on Aboriginal and Torres Strait Islander peoples, women and children, particularly those charged with low-level and non-violent offences. It is an issue that I have highlighted in this chamber and that many others have highlighted publicly. These laws are in need of urgent reform. These are laws too that have a severely disproportionate effect on those charged with the possession of small quantities of cannabis.

Let me highlight a real-life case study for you provided by Victoria Legal Aid:

Chris is in his thirties, he suffers from depression and anxiety following separation from his wife and the accompanying loss of contact with his children. He was seeing a psychologist once a week … and taking prescribed sleeping medication …

But he also turned to cannabis for the relief from his symptoms it provided him.

Police officers visited Chris’ home in relation to a possible breach of COVID-19 Directions and were invited into his house. Police found a small quantity of cannabis in the living room.

Chris has no prior convictions, but he was already on bail for driving offences and … possession. Chris was arrested and charged with cannabis possession and with committing an offence while on bail …

Chris was refused bail by the court because of the effect of the uplift provisions in the Bail Act, and he was remanded in custody as a result of that cannabis charge. This was Chris’s first time in custody. He was never a prospect for receiving a custodial sentence for these offences. Chris pleaded guilty to the charge of possessing cannabis and received only a fine without a conviction.

Chris’s story was a travesty, and it is far, far too commonly repeated under our bail framework. That is why today I am so pleased that this bill, whether further amended or not, will reduce the circumstances in which reverse onus bail tests apply to only serious offending; better limit the application of the unacceptable risk test to reoffending that endangers the safety or welfare of another person; expand the factors that must be considered when an applicant for bail is an Aboriginal person; prohibit remand for offences against the Summary Offences Act 1966; require bail decision makers to consider, when applying the reverse onus test or the unacceptable risk test, whether the accused is likely to receive a custodial sentence and, if so, whether they are likely to spend more time on remand than the likely length of that custodial sentence; amend the new facts and circumstances test to encourage represented bail applications at the earliest opportunity; and repeal the offences of contravening certain conduct conditions and committing an indictable offence whilst on bail. These are significant changes, and there is no doubt that, with these changes, someone in Chris’s shoes will not be remanded in custody again.

This is a good bill. It is an improvement not only upon our current bail laws but on the place our bail laws were at back in 2013, when our remand levels sat at only 17.9 per cent, meaning that these reforms will significantly reduce the population of those unfairly remanded in our justice system. But it does not mean that our bail laws could not be further improved. To this end, I would like to acknowledge the advocacy of the Victorian Aboriginal Legal Service, Liberty Victoria, the Criminal Bar Association, the Human Rights Law Centre and many, many others who would like to see these reforms go further and have offered their unqualified support for Poccum’s Law. We too will support amendments that seek to implement this change.

I express my sincere condolences to the family of Veronica Nelson. The circumstances of her death should never be repeated, and it should never have happened, and I acknowledge the bravery of their advocacy. The bill before us today does implement the lion’s share of the reform that they seek and does address factors that overwhelmingly caused the spike in remand numbers in which Veronica was caught up.

This bill does not introduce a single bail test for bail, but in fairness to the government nor does any other jurisdiction in Australia. The changes proposed, noting in particular the limitations on uplift, the reshaping of the unacceptable risk test and, most significantly, the introduction of new section 3AAA(1), will make a marked difference in the courtroom. But I am hugely disappointed at the government’s last-minute backflip in relation to children, and I am hugely disappointed that we were not formally advised of this change before debate on this bill commenced today. We should absolutely be treating vulnerable children differently to adults, and we should be protecting them from the trauma and harm associated with a child’s engagement with the justice system.

Bail deals with two conflicting principles in our justice system: the presumption of innocence and the need to ensure community safety and the protection of Victorians. This bill finds a much-improved balance between the two for adults. Given the previously fraught attempts and unintended consequences flowing from past bail reform, I am very supportive of the insertion of a two-year review clause.

I would like to thank the Attorney-General and her staff for considering matters raised by my office in the lead-up to this debate. They go to the application of the unacceptable risk test, and I look forward to ventilating those matters with the Attorney-General in the committee of the whole. With those comments made, I confirm that Legalise Cannabis Victoria will be supporting the reform of our bail laws and the positive step forward that this bill takes.

David LIMBRICK (South-Eastern Metropolitan) (11:47): I also rise to speak on the Bail Amendment Bill 2023. It has been over four years since the government’s 2018 reforms of the Bail Act 1977 commenced in response to the Bourke Street massacre, a tragic event that took the lives of six Victorians and severely injured many others. Those reforms sought to strike a balance between the presumption of innocence and the protection of the community. By June 2022, though, 42.2 per cent of all people held in prison in Victoria were unsentenced. This figure included individuals such as Veronica Nelson, who sadly passed away on 2 January 2020 whilst being held on remand in the Dame Phyllis Frost Centre. The circumstances of her passing, combined with the over-representation of low-level offenders held on remand, demonstrate the impacts of knee-jerk legislation too far in the opposite direction. The impacts of those reforms can also be observed on the other side of bail decisions. On 4 September this year a group abducted and seriously injured a 14-year-old boy in Glen Huntly while on bail. A similar incident occurred in Northcote around the same time. Both incidents involved individuals on bail. These reforms have failed in every direction they possibly could. This bill seeks to remedy those situations and makes a good effort to achieve this. But in my opinion and the opinion of most legal experts I have spoken to on this bill, it does not go far enough in its solutions and retains problematic bail provisions which contribute to the previously mentioned events.

I would like to say something positive about the bill. The use of flowcharts within the bill and the act as is assist greatly with understanding the process of consideration a bail decision maker should undertake when making bail decisions. While this is of assistance to the reader in providing clarity, it must be mentioned that if the government’s proposed bail consideration process is so complex that a flowchart is necessary to explain it, then perhaps the process has become more complicated than is necessary.

The bill adds the requirement of a bail decision maker to consider if an accused would be sentenced to a prison term and determine if the remand period would exceed any such prison term. The problem with this prescribed method of foresight is the state of legal affairs when it is made. An accused may have multiple charges against them which, over the course of due process, may be altered or dropped or they may be found not guilty of some or all charges. These factors and many more can and often do impact sentencing outcomes. Requiring bail decision makers to completely skip the process of fair trial when determining a term of remand would be in breach of the person’s right to a fair hearing and rights in criminal proceedings.

The proposed changes to section 4AA(2)(c), a legal mechanism more commonly known as double uplift, seek to create special exclusions to vulnerable classes of people. But in practice this section creates vulnerable classes of people through its very nature. The coroner’s recommendation concerning section 4AA(2)(c) was very clear: double uplift provisions do not belong in the bail process. Navigating the two-step bail process proposed by this bill is about as complicated as learning The Nutcracker with two left feet. The level of complexity within this process places an accused at a significant disadvantage as they or their legal representation attempt to form a defence in compliance with these steps. The show compelling reasons test and exceptional circumstances test place unreasonable burdens on an accused, well beyond what is considered a fair judicial process. The unacceptable risk test places the onus on the prosecutor, where it belongs.

The Bail Act cannot be left in its current form. This bill takes some steps in the right direction, and for that reason I will not oppose it.

Michael GALEA (South-Eastern Metropolitan) (11:50): I also rise to speak on the Bail Amendment Bill 2023. Bail is the intersection of two really critical different elements of our justice system, the first being that most fundamental democratic right, the presumption of innocence, and the second being the community’s right to be safe. Bail allows those accused of crimes not to be deprived of their liberty as an extension of the fact they are presumed innocent. In assessing bail, decision-makers must balance the severe decision to remand someone pending the outcome of their trial with the critical need to ensure that the community is safe from any threat that that person may pose. It has become clear that the current laws do not strike the right balance. They are not achieving the results that we should expect as lawmakers and as Victorians, and it is clear that reform is needed to meet community expectations as well as the goals of our justice system.

This bill addresses several changes introduced by the 2013 and the 2018 reforms to bail laws. Those changes established Victoria’s bail system as the toughest in the country. I was not on Bourke Street on the day that led to some of these reforms coming in, but I know a colleague who was, and the general sense of absolute fear in the city that day is something that I hope will never, ever come back to our streets. It was a horrific crime that left many people with scars that they carry today, both physical and mental and for those that we lost. But it is evident that over the five years since these bail laws came in aspects of these changes have resulted in our bail system no longer functioning as intended.

The Bail Amendment Bill 2023 will implement critical changes to these bail laws. Prominent amongst these reforms are those that address the reverse onus and uplift provisions established in the 2013 and 2018 reforms to the Bail Act 1977. Changes to the Bail Act have been called for by several reports and inquiries and through the advocacy of and in consultation with legal stakeholders. The most notable of these of course is the coronial inquest into the death of Veronica Nelson – the Nelson inquest ‍– and the parliamentary inquiry into Victoria’s criminal justice system, both of which called for reforms to make bail more accessible.

Before I comment on the aspects of the bail laws that are being changed in this bill, it is essential to reiterate the context of our bail system, how we got here and the facts that make it clear why it is imperative that we implement the much-needed measures in this bill. There is considerable data to support that the introduction of the bail breach offences in 2013 has contributed to a significant increase in Victoria’s remand population. The two offences added were committing an indictable offence on bail and contravening conduct conditions of bail. These offences have especially impacted women, Indigenous people and Victorians experiencing disadvantage more generally. They also added an extra layer, so you would be charged not only with the offence itself but with the secondary offence, effectively exponentially growing the rap sheet of those in those situations. The 2018 reforms added to the reforms made in 2013 and sought to impose stricter bail tests for those alleged to have committed offences whilst on bail. These measures removed the presumption in favour of bail for specified schedule 1 and schedule 2 offences under the Bail Act, replacing that presumption with a reverse onus, being the requirement that an applicant would have the burden to disprove.

They further enabled what is known as an uplift in bail tests. This reform meant that people charged with having reoffended on bail would face bail tests established for more serious offences even if they were themselves only accused of committing repeated low-level offences. For instance, if their offence would be assessed under the lesser unacceptable risk test, it would be automatically uplifted to the stricter show compelling reason test.

I also note that the 2019 Crime Statistics Agency Characteristics and Offending of Women in Prison in Victoria, 2012–2018 report found that women who face the reverse onus bail test increased from 37 per cent to 79 per cent of cases in those years. The report found that 29 per cent of those women remanded in 2018 only faced a reverse onus test due to implementing the two offences established in that 2013 reform. The same report found that the number of women entering remand with a Bail Act charge increased from 20.7 per cent to 66.2 per cent over the period from 2012 to 2018. It is important to understand the implications and the impact of the reverse onus and uplifting provisions, which are robustly and thoroughly addressed by this bill.

We all know the context of the 2018 reforms: the instances of notable violence and shocking crimes, as I have already discussed in the opening words of my contribution today. Those evil acts were committed by an individual who was on bail. The purpose of those reforms was to restore public faith in the bail system and to implement the changes recommended by former Justice Coghlan to enhance community safety. There was a need to take firm action to address bail in response to the prominent instances of terrible crimes committed by persons out on bail. Five years later we can see where our bail laws have failed Victorians. As has been said, the combined impact of those two reforms has resulted in a notable rise in the detention of repeat non-violent offenders on remand, and this has disproportionately affected disadvantaged individuals generally speaking as well as in particular women, children and members of our Indigenous communities.

Earlier in my contribution I referred to the Nelson inquest, and as I move to discuss specific reforms made by the Bail Amendment Bill 2023 I would like to acknowledge and recognise the advocacy of the family and the community of Ms Veronica Nelson, a strong Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman who tragically passed away while she was on remand. The advocacy of her family and loved ones for reforms to Victoria’s bail system following her tragic passing has had a profound impact. Their tremendous efforts have done so much to highlight where our system needs improvements and to show where we must do better.

This bill puts into action eight of the 13 recommendations from the Nelson inquest that relate specifically to the Bail Act 1977. One of the fundamental changes proposed in this bill is to the concept of uplift, where a person on bail is then alleged to have committed another offence and thereby faces a much more onerous bail test than the normally applicable one for that offence alone. To address this, this bill proposes that the test for uplift should no longer apply for non-schedule offences so that bail can be considered more appropriately for lower level allegations. This will mean that accusations of low-level offences that would be assessed under the unacceptable risk test will not result in a person’s bail test being uplifted to the show compelling reasons test or the exceptional circumstances test.

This bill seeks to make further sensible refinements to the unacceptable risk test as well. This change will ensure that the risk of low-level offenders committing an offence whilst on bail would not be a reason alone for remand to be refused unless there is also a risk to the safety or welfare of another person. This will help to reduce the remand levels amongst people who are determined to be at risk of committing low-level offences such as graffiti or shoplifting whilst on bail. The Bail Amendment Bill 2023 will also repeal two of the three Bail Act offences. The first is the offence of contravening a conduct condition of bail, and the second is committing an indictable offence whilst on bail.

Business interrupted pursuant to standing orders.