Thursday, 5 October 2023

Bills

Bail Amendment Bill 2023

Second reading

Debate resumed.

Michael GALEA (South-Eastern Metropolitan) (14:05): I rise to continue and to conclude my remarks on the Bail Amendment Bill 2023. Prior to question time I was outlining some of the key changes being made as part of this legislation, and I will return to bail offences, which is where I left off. This bill will repeal two of the three specific Bail Act 1977 offences, the first of those being the contravention of conduct as a condition of bail and the second being to commit an indictable offence whilst on bail. Bail breaches of this kind will still have consequences, but they will no longer be criminal offences in and of themselves. Whilst it is clear that these offences have increased numbers on remand, it is far less clear that the offences do anything to discourage those bail breaches as they are supposed to.

Our criminal justice system already appropriately responds to bail breaches and offences committed whilst on bail. Retaining these offences is not necessary to ensure that there are consequences for that conduct. Breach of bail conditions can still result in bail being revoked, and instances where someone commits an indictable offence on bail will still see that person face the appropriate charges. What this change does is remove the additional 30-penalty unit summary offence that is currently added to such instances. As I said earlier, the compounding nature of these laws as they currently stand has adversely affected our community’s most vulnerable people.

With the changes to uplifting and the unacceptable risk test, this reform will help to ensure that our justice system is assessing bail applications on their own merits. The offences being repealed have had no clear effect in discouraging bail breaches. This change is about ensuring that someone does not have their bail for alleged petty theft, for example, assessed on the same test as someone charged with a terrorism-related offence. We do not want to see people who commit a few small thefts facing the same test as someone charged with murder or terrorism. This is not how we want our system to work.

Additionally, a new category of offence will be established. This will see the majority of summary offences classified as remand-prohibited offences, where bail cannot be refused unless an exception applies. Appropriate conditions may apply with the possibility of remand for non-compliance. Remand prohibition will not apply to certain serious summary offences, as outlined in the newly established schedule 3 offence category.

Another area of reform I would just briefly like to mention is that this bill will update the Aboriginal-specific considerations. The Bail Act currently sets out these considerations for bail decision makers in cases where the applicant self-identifies as Aboriginal. This provision is in acknowledgement and consideration of the fact that Aboriginal Victorians still face unique disadvantages within our criminal justice system. It has become clear that there are issues relating to a lack of clarity on how to apply the considerations to aid bail decision makers to consider the specific issues that Aboriginal people face. To address this the bill will update the Aboriginal-specific factors set out in section 3A to include the following considerations: first, systemic factors that result in the over-representation of Aboriginal peoples in the criminal justice system and the increased risk Aboriginal peoples face in custody; second, the personal circumstances and the lived experiences of Aboriginal peoples that may make a person particularly vulnerable in custody, be a causal factor for offending behaviour or may be disrupted by being remanded; third, the importance of maintaining protective factors linked to rehabilitation, such as connection to culture, kinship, family, elders, country and community; and fourth, any other cultural obligations, such as sorry business. These reforms and the many others included in the Bail Amendment Act 2023 recognise that the existing laws have failed to protect parts of our community, and they must be fixed.

The Allan Labor government holds that remand and custody should be used to keep Victorians safe, not to needlessly heap additional punishment and entrenched harm on the most vulnerable members of our community. A great deal of consultation has occurred to bring about this bill. Stakeholders from all aspects of the bail system contributed towards determining the reforms needed to address the current shortcomings and failures.

The Bail Amendment Bill 2023 will implement reforms to significantly improve our bail system, ensuring appropriate and proportional decision-making that does not needlessly harm vulnerable people or compromise community safety. This bill will make Victoria fairer and safer, and for that reason I commend it to the house.

Trung LUU (Western Metropolitan) (14:11): I rise today to speak on the Bail Amendment Bill 2023. I understand the reason for this bail law reform. I support the purpose of the bill and generally support some of the changes that the bill seeks to make, but the bail laws over the years have been changed so many times and the government has not quite got it right and balanced when it comes to responding to the changes in custody patterns as well as community sentiments. Too often changes to bail laws have been made when big events happen which people have strong emotional reactions to, and the government responds to the community’s feeling to make changes to the bail laws. I will give you an example. In 2017, as we all know, there was a tragedy in Bourke Street when a man who was out on bail drove a car on Bourke Street, hitting pedestrians and killing six people. Public outrage about this tragedy caused this government to tighten up the bail laws. Then in 2020 there was the tragic death of Veronica Nelson in the Dame Phyllis Frost Centre. She was in custody after being refused bail under the new tightened bail laws and died after vomiting all night. This second tragedy and the subsequent coroner’s report prompted the government to review the bail laws again. This time they wound back some of the tightening of the law that occurred after the Bourke Street attack.

The idea of bail deals with two conflicting principles: the presumption of innocence and the interests of community safety. However, when these are tilted in any particular way depending on community sentiment it can cause traumatic outcomes if they are not balanced properly. Presumption of innocence means a person who is accused of a crime is entitled to be treated as innocent until they are proven guilty in a court. To hold someone on remand after they have been charged but before they have been found guilty in some senses denies that presumption of innocence. On the other hand, there are competing interests of community safety. Unacceptable risks and the probability of the risks that are posed to the community are why people are not granted bail or are released on bail and are required to meet certain conditions – that is, restricting their movement. These requirements upon an accused mean that a person promises upon release to behave while on bail. One of these conditions is that while out on bail they should not commit any other offences. The bail justice or magistrate tries to strike a balance between these principles, and it is hard to strike the right balance when making a decision. But if government legislators take away their abilities to freely implement these principles by adding barriers or from time to time making rushed amendments and laws due to any one community sentiment without keeping a good balance on the principle, it can cause the results that we have experienced over the years.

I am pleased that the government has listened to the people and the voice of the entire community and made some changes to the bail laws and retained the status quo of the youth bail laws. I thank the Shadow Attorney-General Michael O’Brien in the other place for the great work that he has done in voicing the community’s concern that the bail bill would have seen young offenders facing the state’s weakest test of bail even in some of the most serious offences. I say this because there has been a recent increase in high-profile violent youth offences and steadily increasing youth violence in our community. In particular I have seen a few in my electorate in the west, as I have previously spoken about in this chamber in seeking the government’s assistance to address youth violence.

I welcome the government’s decision to backtrack on some of the bail law reforms, allowing it to review them further down the track, thus ensuring that we keep monitoring the effects of these law reforms and have the capability to prevent any possibility of more tragic deaths like those we have mentioned in the Dame Phyllis Frost Centre. Currently not only are too many people on remand but they have to wait so long for their trial, at times without a sentence. They spend more time on remand than the length of a legal sentence and then are simply released when their time is served.

We have also seen that certain cohorts, like women and Indigenous Australians, were affected by the tightening of the bail laws. This is something we need to look very closely at. But a bail policy is about balance. It is about getting the balance right between risk to the community and the right to little restriction for those who welcome reform. Our justice system is based on the principle that all are equal in the eyes of the law, and justice should not be based on ethnicity, race or colour of the skin. It should be judged on a case-by-case basis and the individual circumstances of a person’s capability and vulnerability, because not all incidents are the same.

Even though I support the bill in general, I do have some concerns. We are moving amendments to the bill, and one which concerns me is in relation to retaining the offence of committing an indictable offence while on bail. I say this in relation to committing an indictable offence while on bail because I have seen too many comments in relation to the first amendment being retained. The police do not feel they have sufficient support and feel helpless when they arrest the same people over and over again because some people who are accused are released on bail after constant reoffending. Another thing is many of my constituents can see those who are released on bail committing offences over and over again and do not feel safe. The other thing is criminals who are on bail can break into someone’s house and not feel remorse, and when they are caught they are immediately released on bail to commit the same offence again. How can people in my community feel safe if they see this occurring over and over again? There must be some consequences when people repeat offences over and over again while on bail. Without a proper response, antisocial behaviour and criminal behaviour will continue and even be encouraged. Those people released on bail have no fear of any offence. When an alleged offender is released on bail they make an undertaking that they will not commit any further offence while on bail. Should he or she not honour the undertaking, there should be an appropriate punishment. Otherwise what is the point of having bail? So I urge the government and those in this house to support looking into this amendment to committing an offence while on bail when it is a serious or indictable offence. Those who are on bail should be treated just as fairly as those who have not been on bail.

In closing, I acknowledge and am glad that the government has listened to the people, listened to the community, in relation to backtracking on some of the amendments to the reform of the bail laws. But I do urge that this house and the government look into the offence of committing an indictable offence while on bail and ensure that those who have committed an offence will not repeat that offence while on bail.

Tom McINTOSH (Eastern Victoria) (14:20): I rise to speak to this bill, and I want to acknowledge the work of Minister Symes. Whether it be as Leader of the Government in this place or in emergency services or as Attorney-General, she is consultative and puts a lot of effort into all her work, so I want to acknowledge that. She is an outstanding member of the government, so I thank her.

Victoria’s current bail laws do not properly distinguish between low-level and non-violent offending and serious offending that poses a risk to community safety. This has led to an increase in remand, particularly for repeat offenders who may not pose a risk to community safety. When a person is arrested, they can apply to be released from custody on bail, which is an agreement between the court and the person that they will return to court at a later stage to respond to their charge. Bail is often granted with conduct conditions – that is, curfew or travel restrictions, as determined by the bail decision maker. Where a person is not granted bail or does not apply for bail, they are remanded in custody until their matter can be heard. A person on bail is presumed innocent until proven guilty, meaning there should be a presumption in favour of being given bail unless they are considered to pose a risk to the welfare and safety of the community, or they are at risk of absconding.

Whether or not a person is granted bail depends on whether the applicable test for granting bail has been satisfied. The applicable test will be one of three tests and will depend on what the charged offence is. The unacceptable risk test requires bail to be refused if the prosecution proves that there is an unacceptable risk that the person would endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness or obstruct justice, or fail to surrender in accordance with conditions. This test applies to non-scheduled offences – that is, offences not listed in either schedule 1 or schedule 2 of the Bail Act 1977, such as shoplifting or graffiti. For this test, there is a presumption in favour of bail, meaning the burden is on the prosecution to prove.

The show compelling reason test requires a person charged with an offence set out in schedule 2 of the act – that is, rape or aggravated assault – to show compelling reasons as to why their detention in custody is not justified: for example, lack of prior criminal history, vulnerabilities, sentence unlikely to be imposed et cetera.

The exceptional circumstances test requires that bail be refused unless a person charged with a schedule 1 offence – that is, murder or terrorism – can establish that there are exceptional circumstances that exist to justify their being given bail: for example, extreme hardship.

I think we acknowledge that Victoria currently has some of the strictest bail laws in the country, and this is the result of two previous reforms. The 2013 reforms introduced new bail offences, with summary offences each attracting a penalty of three months imprisonment or 30 penalty units, being one of two: to commit an indictable offence on bail or to contravene conduct on bail. The 2018 reforms, which sought to impose tougher bail tests for those alleged to have committed offences while on bail, were specifically the following two charges: to remove the presumption in favour of bail from specific offences listed in schedule 1 and 2 of the Bail Act and introduce a presumption against bail for offences that an applicant would have the burden of disproving.

It also enabled an uplift in the bail test for persons who were charged with reoffending while on bail. This meant people could face more onerous bail tests intended for more serious offences when committing repeated low-level offences. For example, if a person committed an offence while on bail, their test will be uplifted from unacceptable risk to the show compelling reason test. If the same person was then granted bail again and committed a further offence, they would be double-uplifted to the more onerous bail test, requiring them to show exceptional circumstances. The 2018 reforms were introduced in response to a series of violent crimes that had been committed while the perpetrator was on bail, and most notably that was the Bourke Street murders. This was intended to restore public confidence in the bail system and implemented a series of reforms recommended by former Justice Coghlan to increase community safety.

We know that these two previous sets of reforms have resulted in a significant increase in remand of repeat non-violent offenders. This has disproportionately impacted people experiencing disadvantage, particularly women, children and Aboriginal people. This bill will address the most urgent identified issues with our current bail laws so that low-level, non-violent offenders are no longer being remanded where they do not pose an unacceptable risk to community safety.

The bill implements eight of the 13 recommendations of the Nelson inquest relating to the Bail Act, and the bill introduces a number of changes to existing features of the Bail Act 1977. The bill proposes to repeal those aspects of the 2018 reforms for those accused of repeat lower level offending by providing that reverse onus tests will apply only to the serious offences specified in the schedules in the Bail Act. This will be done by removing uplift consequences for non-scheduled offences such as shoplifting, graffiti and Bail Act offences.

The bill refines the definition of ‘unacceptable risk’ to make it clearer that a potential risk of minor offending is not enough reason to refuse bail unless someone else’s safety or welfare is threatened. This can capture property-based offending that impacts welfare, such as repeated theft from the same small shop.

The bill repeals the 2013 Bail Act offences of breaching bail conditions and committing further offences while on bail. This conduct will still have consequences – for example, bail being revoked or changes to bail conditions – but they will no longer be standalone offences. The bill does not remove the remaining bail offence of failure to appear – failing to attend your court hearing without a valid reason – meaning a person can still be charged with this as a standalone offence. However, the reverse onus test will no longer apply to this offence.

The bill introduces remand-prohibited offences so that particular offences that are set out in the Summary Offences Act 1966 that are unlikely to result in a prison sentence will no longer enable a person to be remanded. Those on bail for such offences will still be subject to bail conditions, ensuring community safety is upheld. The bill will require bail decision makers to specifically consider whether the accused is likely to be sentenced to a term of imprisonment if found guilty and, if so, whether they are likely to spend more time on remand than the likely length of the custodial sentence.

The bill will allow an accused person to make a second legally represented bail application before a court without having to establish new facts or circumstances, as is currently required. This seeks to remove the incentive for applicants to try and secure a second application by appearing without a legal representative at their first application.

The bill will update and strengthen existing provisions of the Bail Act that require a bail decision maker to consider additional factors if the applicant for bail is a child or an Aboriginal person. The updated Aboriginal considerations in the bill have been developed in partnership with the Aboriginal Justice Caucus, and the child-specific considerations reflect extensive consultation with legal and Aboriginal stakeholders and bodies representing children and young people. The bill introduces a requirement on bail decision makers to identify and record the Aboriginal-specific considerations they had regard to when refusing bail to an Aboriginal person. This means that bail decision makers will be required to identify what relevant matters they have had regard to, but they will not be required to articulate exactly how these matters have been taken into account. The bill will further make amendments to clarify, modernise and otherwise improve the act, including adopting gender-neutral terms, updating the definition of ‘Aboriginal person’ and making it clear that the rules of evidence do not apply in a bail application.

Bail is one of the most critical components of our justice system, and decisions to refuse bail to a person accused of committing an offence – a person presumed innocent – should not ever be taken lightly. Our bail decision makers make thousands of decisions each year, assessing complex sets of circumstances and risks to make appropriate decisions that respect the rights of the accused as well as the interests of the community. We know these decision-makers take this job seriously, and the government understands how seriously we must take our role in bringing in laws that directly impact the freedom of Victorians.

Our bail system is currently not working as well as it should. Our system must do better, and today we begin the process of making it better. The Bail Amendment Bill 2023 gives us a chance to get the balance right, to make sure our legal system is able to carefully consider the risk posed to the community by those who commit serious offences without unnecessarily remanding those who do not.

We know that for many in our community our bail laws touch on traumatic experiences, and we recognise the importance of getting the balance in these laws right. We know that our responsibility is to the community to ensure we take all efforts to protect community safety, and our reforms do not undermine our commitment to this. We have also heard the concerns raised by many that our laws must be fairer and more considerate of the reasons people engage in a cycle of repeat offending. The Bail Amendment Bill 2023 will bring much of this into our bail system. It will create a bail system that is fairer and more flexible for our decision-makers to consider the circumstances of offending.

It is important we acknowledge the many who have advocated for change in this space and the importance of their role in developing our reforms over many years. Many of us have spoken with and received correspondence from community members with strong views on reform of these laws, and we have taken this input seriously. We also acknowledge many within the legal and community sector who have advocated for reform, particularly those who have been engaged in consultation on this bill. We further wish to acknowledge and recognise the advocacy of the family and community of Ms Veronica Nelson, who tragically passed away while on remand. Her tragic death and story highlight many of the ways our system needs improvement, and we acknowledge the tremendous advocacy of Veronica’s loved ones, in the wake of her passing, for reforms to our bail system.

We know for many it has been a long journey to get to the point we are at today where we are able to bring these reforms through the Parliament. We know how critical it is that these laws are brought in without delay, and we want them brought in as soon as possible. At the same time we know these changes will require substantive change in practice for our justice system, particularly for our bail decision makers – our courts, police and bail justices. The effect of these laws is tied to how well they can be implemented, and as such we need to make sure that our justice system can implement them effectively. This is why we have the bill scheduled to commence on 25 March 2024, so our system will have six months to incorporate the practices proposed.

The Bail Amendment Bill 2023 will adjust two of the key aspects of the 2018 bail reforms – the uplift and the reverse onus test – so there is greater flexibility and consideration of the circumstances of offending when a person applies for bail. So we can understand how these reforms will work, it is perhaps worth setting out how the system currently works. Starting from the beginning, when a person is charged with a crime they can apply to be released from custody on bail, which is their agreement that they will return to court at a later stage for their court hearing to respond to their charge. Whether or not a person is granted bail depends on whether the relevant bail decision maker, who might be a police officer, a bail justice or a magistrate, is satisfied that the applicable test for granting bail has been satisfied. There are three different tests for bail, and which test applies depends on what the person is charged with. This all depends on whether the offence a person is charged with is one of the offences listed in schedule 1 or schedule 2, which I outlined earlier.

Those offences which are not listed in a Bail Act schedule are generally low-level, non-violent offences such as graffiti or shoplifting. The unacceptable risk test is the lowest level test and the only test where the burden is on the prosecution to establish why the person should not be granted bail. This test requires bail to be refused if the prosecution proves there is an unacceptable risk that the person would endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness or obstruct justice, or fail to surrender in accordance with conditions. This is the test that applies to non-scheduled offences, being those generally low-level, non-violent offences. For those charged with offences listed in schedule 2 of the Bail Act – more serious offences – there is the reverse onus test, meaning the burden is on the person applying for bail to satisfy the bail decision maker as to why they should be given bail.

As I said at the start, I am absolutely supportive of this work, and I look forward to the bill passing and being enacted early next year.

Samantha RATNAM (Northern Metropolitan) (14:35): I rise to speak on the Bail Amendment Bill 2023, a bill that has been a long, long time coming in attempting to fix the ‘unmitigated disaster’ of the 2018 government changes. I say that as someone who had the honour of being in the chamber in 2018 and has spent much of their time since then – alongside my colleagues – asking the Attorney-General when the government would recognise the discrimination and the record levels of First Peoples, women, children and people with a disability in prison, untried and unsentenced, for no other reason than the fact they happen to be disadvantaged and vulnerable and often unrepresented in court. The more disadvantaged you are, the more imprisoned you are under these laws. Even beyond the heartbreaking tragedy of Veronica Nelson, the case law in our courts is replete with the most horrific cases of injustice, cases which are scarcely believable – a person with an intellectual disability repeatedly charged with public drunkenness ending up imprisoned for over a month until it took the Supreme Court to finally decide that applying a bail test designed for terrorists and murderers to this person was absurd. There were thousands of injustices like these.

Then we come to the data, the statistics. As a result of this disastrous policy we are talking about a gap in incarceration rates between Indigenous Victorians and non-Indigenous Victorians that is higher than that between whites and people of colour in apartheid South Africa and far in excess of the gap between African Americans and white Americans even at the height of the Jim Crow laws in the 20th century. We are talking about First Peoples imprisonment increasing by 70 per cent in only the first five years of this Labor government, nearly all on remand – and it is even higher for First Nations women. Yet despite this, apart from when my Greens colleagues and I were on our feet, the word ‘bail’ has barely been mentioned in this Parliament over the last five years, let alone even the slightest recognition of this unprecedented injustice towards First Nations persons in our time.

In response to our questions, all we heard was deflection and excuses, some of which I note have persisted in the talking points for the Labor side in this debate, even today. ‘We can’t change bail laws because they’re far too complicated’, they say, by which they mean not so complicated that they cannot be changed within six months in the lead-up to a law and order election but far too complicated to be amended to reduce some of the highest rates of imprisonment of people of colour unsentenced for minor offences, not only anywhere in the world but at any time in history – far too complicated so as to do nothing for five years despite deaths in custody but apparently not so complicated that we can change them within hours of debate to please the Herald Sun and the Liberal Party.

They also say that the Greens criticising bail laws was just us being emotive, being glib and not being hard-headed and facing reality – talk about galling! The Greens directly quoting recommendations from the Victorian Law Reform Commission is apparently being emotive. Using the evidence and recommendations from the Law Institute of Victoria, the bar association, the commissioner for children, the Ombudsman, the Sentencing Advisory Council, universities, royal commissions, the Crime Statistics Agency, community legal centres on the front line and our own parliamentary inquiries – I mean, how glib of us! Let us be clear: the only emotive arguments on bail have come from the government, whose glib declarations that they are ‘keeping Victorians safe’ come despite the only observable evidence after changing the bail laws being a statistically significant increase in the rate of recidivism.

The Greens have been the only party that have based their position on the evidence of these agencies and their recommendations – the experts on justice reform and reducing criminal offending cycles. What we have really learned over the last decade is that it is not evidence or expert advice that seems to guide justice policy in this place but politics, the tabloid media and electoral cycles. That is what explains the great silence and the lack of action on First Nations persons imprisonment over the last five years by this government and this Parliament – an awkward political détente between the Liberal Party still licking its wounds from a disastrous 2018 law and order election campaign and a Labor Party that feels its only electoral vulnerability, despite the 2018 result, is perceptions that it is weak on crime.

But in this term of government there was some hope. With the election out of the way, the government introduced this bill, and that does go a way to reversing the disastrous changes to bail laws in 2013 and 2018. We have also had members of the government, including the Attorney-General, finally speaking some truth on government failures in criminal justice reform at Yoorrook. And as I said yesterday, this took great political courage, and it is to their credit. But that is why we found the last 24 hours so disturbing, with the government doing a deal with the opposition to water down an already compromised bill to secure its support and continue the détente on justice policy between the two major parties. Let us be absolutely clear here: the government does not need the opposition’s support to pass these laws. We have here intelligent and progressive members of the crossbench who would be delighted to pass meaningful criminal justice reform to reduce the discrimination and injustice to First Peoples, but instead Labor has chosen to lie with the Liberals rather than partner with the progressives. While the Attorney calls this a pause not a backflip, I fear it is a sign of a government that still intends to run its justice policy from the Premier’s office based on politics not justice evidence.

I spoke yesterday about it being finally time for positive and progressive politics based on truth and not fear and it finally being time for implementing policies and laws that actually work for Victoria’s First Peoples. I was of course speaking then to opposition members, but now I say to the government and the new Premier: do not let the opposition continue to run your justice agenda and do not fear the Herald Sun. Instead work with this progressive crossbench, First Nations and criminal justice experts towards finally delivering justice policies that work, especially for First Nations Victorians. Taking this opportunity to finally reduce First Nations incarceration and deaths in custody would, I believe, be the greatest achievement for any Victorian government. I ask the Premier to join with us, not waste this opportunity, and finally make this happen.

Sheena WATT (Northern Metropolitan) (14:42): I rise to speak on the Bail Amendment Bill 2023. I start, as is right and proper with this bill before us today, by paying tribute to the late Veronica Nelson, a proud Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman and beloved daughter and partner, who tragically passed away on remand. I also take a moment to acknowledge the tireless and brave efforts of her mother Aunty Donna; her partner Uncle Percy, who is known to many of us; and her loved ones in keeping her legacy alive and in calling for reform to Victoria’s bail laws, which have played a role in informing this bill.

Today I speak as a proud member of a Labor government that is taking real steps toward addressing the over-representation of Aboriginal people in our justice system, a government that is truly and deeply committed to reconciliation and justice for our mob. I know firsthand the disproportional impact that Victoria’s current bail laws are having, which I know are tough, and particularly the extraordinary and significant disadvantage that these have placed on Victoria’s Aboriginal community. I come to this place having been a member of the Aboriginal Justice Forum, representing the views of the Aboriginal health community and working closely with the Aboriginal justice sector for a number of years, including in the Royal Commission into Family Violence.

Only yesterday I was up here talking about public drunkenness, and I have since Tuesday heard some outrageous mistruths about the Voice to Parliament. So I have got to say it has been a bit of a week, and we have got eight days to go. But do you know what, I am going to take a moment to celebrate the fact that we are actually discussing the plight and the futures of Aboriginal people, because for too long this place sat silent on the lives and futures of Aboriginal people. The fact is that this bill before us is informed by a large number of stakeholders, and I will of course call out the Aboriginal Justice Forum, a partnership that is now in its fourth or fifth iteration – I cannot recall. But it goes from strength to strength, led so ably by members of the Aboriginal community, the Aboriginal Justice community and of course the now Allan Labor government.

We have come here today with previous reforms from 2013 and 2018, community safety and public confidence in mind. It has become clear that Victoria’s bail laws have left some members of our community exposed to increased criminalisation and incarceration. This was highlighted not only in the coronial inquest into Veronica’s death but also the parliamentary inquiry into Victoria’s criminal justice system, which I participated in last term, both of which called for reforms to make our bail laws fairer and more flexible. Can I take a moment to acknowledge fellow members of the committee that participated in what was a very, very significant parliamentary inquiry. It is the job of good governments to acknowledge when the balance just has not been achieved. With this bill we are recognising that there is a problem, but most importantly we are acting on it. That is why we are introducing these reforms to begin on the path to righting our wrongs. Bail laws should be used to keep Victorians safe, not to further disadvantage the most underprivileged members of our community.

The Bail Amendment Bill 2023 introduces a number of key changes that will not only address the most pressing issues with our bail laws but also realise the implementation of eight out of the 13 recommendations of the coronial inquest into Veronica’s death. I might have to check that number, but that is what I thought it to be upon my inspection. Most importantly, it introduces these changes in a balanced and nuanced way where we can distinguish between low-level non-violent offending and those more serious offences that pose a risk to community safety. It more appropriately targets reverse onus tests to those accused of serious offending, enabling a more balanced and flexible approach to bail decisions for adults accused of minor offences who would not pose a flight risk or community safety concerns if they were released on bail. It makes some commonsense refinements to the current unacceptable risk test, the lowest level bail test, so that the risk of committing an offence while on bail would not be enough reason to remand those accused of low-level offences unless they pose a safety risk. It repeals committing an indictable offence while on bail and contravention of a conduct condition of bail as offences under the Bail Act 1977, responding to recommendations made by the coronial inquest into the death of the late Veronica Nelson, whilst also ensuring mechanisms remain to remand serious offenders who breach bail and threaten the safety and welfare of our communities.

The truth is I could go on and on about how this bill could and will reform our bail laws for the better, but with the time I have left today I would like to focus on some specific proposed reforms that will make a real difference to Aboriginal people in contact with our justice system. As it currently stands, the Bail Act includes a number of considerations in section 3A which must be accounted for when bail decisions are made in relation to an Aboriginal person. While the intention was to address specific issues of Aboriginal over-representation in our justice system, it has become apparent that these provisions are being misunderstood and inconsistently applied. Simply put, they are not working as they were envisioned. After extensive conversation and consultation with Aboriginal stakeholders and community leaders, and I will take a moment to acknowledge the work of the Koori Court and the esteemed elders that participate in that, we are taking action to ensure that these provisions work as intended. While giving a shout-out to the Koori Court I pay my respects to those in the Broadmeadows Koori Court, one I sat on on a great number of occasions before coming to this place, as would be appropriate, and where I heard about what really are the lives and circumstances of Aboriginal people that bring themselves before the Koori Court.

With this bill before us we are moving to amend section 3A to clear up confusion for bail decision makers and make sure that they are supported to uphold their common-law responsibilities, to ensure incarceration rates for First Peoples only increase when there is a good reason.

The changes proposed under this bill would require bail decision makers to consider the systemic factors that have led and continue to lead to the over-representation of Aboriginal people in the justice system and on remand as well as specific risks to First Peoples in custody, and depending on the circumstances of a case and the availability of personal information, bail decision makers will be required to take into account the personal circumstances and lived experience of Aboriginal peoples that may have impacted their offending – which make them especially vulnerable in custody or to being disrupted by being in custody. There are of course a number of factors that can contribute to that: I am thinking of disability, past and ongoing traumas, housing insecurity and kinship or caring responsibilities – and I certainly heard much about that in the Koori Courts. It would also require these decision-makers to recognise and consider the cultural obligations of Aboriginal peoples, the need for accessible Indigenous bail support and services and the importance of connection to country, culture and community, because these factors play a vital role in successful rehabilitation.

As part of this we are making sure that families, communities and Aboriginal support services have the opportunity to provide bail decision makers with such information, recognising the importance of Aboriginal people being involved in decision-making about other Aboriginal people. I acknowledge the Victorian Aboriginal Legal Service (VALS) for the role that they play and the workers that take calls day and night all over the state. You know who you are. I have had the good fortune of hearing your calls once or twice, and I tell you what, you are extraordinary, extraordinary people.

I would like to note that these requirements under section 3A are not intended to make bail decisions harder or to mandate particular outcomes – I just make that very clear – but instead are designed to ensure that our bail system is culturally safe so that decisions reached are well informed and appropriate, because that is what a government committed to equality should do. These reforms are sensible, they are proportionate and they are necessary. They address the most urgent changes needed to our bail system so that those involved in minor offending do not end up facing a life-changing setback – and that is what it is.

Our legal system is built upon the essential principle that those accused of crimes are presumed innocent until proven guilty, and as such the choice to remand someone in custody should only be made when it is clearly needed: when it is evident that the accused poses a risk to community safety or to the just and proper administration of justice in our state. To be on remand is to lose your connection with the people and supports that keep you grounded. It is to lose your job, to be removed from your family, your friends and your community and to risk your ability to return to stable housing. For some of us – Indigenous brothers and sisters, people that look like me – to be on remand is to risk not coming home at all. As such, it has become clear to me that the compassionate and appropriate approach should not be to lock up those most vulnerable amongst us – those who pose no danger to community safety; it should be to afford our bail decision makers the flexibility they need to make considered and informed decisions on each bail applicant that comes before them.

I want to take the opportunity to thank the many stakeholders, and I have mentioned some in my remarks earlier, and community leaders with whom the Attorney-General and the Department of Justice and Community Safety have worked to draft this bill. In doing this I want to acknowledge the hard work of Nerita Waight and VALS, up the road there in the Northern Metropolitan Region, as well as the Aboriginal Justice Caucus, who have gone from strength to strength since I departed their fair ranks. The Aboriginal community controlled legal services are incredibly vital for First Peoples’ equality, both here in Victoria and across the country, and it is the tireless advocacy of such organisations that is helping us build a legal and justice system that works for us all.

Beyond that, this is a culmination today of many years of work by the Aboriginal legal and grassroots community, who have campaigned and called for truth and justice for years. Thank you for your fight. Thanks for sticking at it, your dedication and sharing your insights and your stories. It is not always easy to get up and tell the story of family hardship, as you have done so bravely throughout many, many, many years, so thank you to you. We know that more needs to be done in relation to criminal justice reform for our Aboriginal communities, for people with a disability, for people of colour, for women and children and all those in the state who are vulnerable, disadvantaged or somehow just end up doing the wrong thing once or twice.

We know that existing bail laws are failing the most vulnerable amongst us when they should be keeping us safe, and we remain committed to striving for a better, fairer Victoria for us all, to listening and to engaging so that we can work together to address any disproportionate impacts of Victorian laws on disadvantaged communities. We know that our work towards the goal of a more just system continues and our commitment to the safety with our community and to equality is central to the work that we do. This bill before us demonstrates very clearly that we are getting on with the job. To the members of this chamber and to the Victorian people, I say that I commend this bill to the chamber.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (14:56): It has been a long time coming to get here today. This has certainly been a priority of mine, and it is somewhat surreal to know that we are so close to making some significant reforms. Bail reform is probably the most critical but also the most complex area of law reform that I have taken on since becoming Attorney-General. There has been a very broad spectrum of views as to what must be done to fix our bail laws, but this comes with great responsibility. The fact that any changes can have a broad and potentially life-altering impact on people based on where these laws fall means that there is a range of opinions in relation to exactly where you should land. I take this responsibility incredibly seriously, and it is why the government have put forward reforms that, we are of the view, strike the right balance between ensuring people are not unnecessarily remanded and seeing that we have sufficient safeguards to maintain community safety.

These reforms, as I said, have been many years in the making, and I know there are strong but also vexed views on the questions of how our bail laws should operate. I have sat in front of the commissioners of the Yoorrook Justice Commission, in front of victims and their families, and I have met with stakeholders and other members of the community who are incredibly passionate about these laws. I know that for many there is a high degree of trauma attached to the reforms. We are all aware of the circumstances surrounding the previous amendments to the Bail Act 1977, and I want to be clear to everyone, but especially the victims and their families and loved ones of the 2018 Bourke Street tragedy, that these amendments in no way seek to weaken the government’s commitment to ensuring that the community is safe. Maintaining community safety is the number one consideration for our bail decision makers, and that is not being affected by the bill that we are discussing today.

Many of us are, sadly, deeply familiar with the tragic circumstances of the death of Veronica Nelson, a proud Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman whose death occurred while she was on remand. I know that words will never be enough to make up for the pain and trauma of her family, her loved ones and her community who have suffered her loss. I know reform to bail laws is something that they have advocated for passionately, and I certainly want them to know that I have faith that the steps we are taking today will work towards a safer, fairer and more balanced bail system. There is a lot in this bill to unpack, and I want to thank the members of both this chamber and indeed the Assembly who have gone through the scope of these reforms in detail, especially those who have shared their own or their community’s experiences with these laws. It has been an invaluable debate.

I want to bring the house’s attention to two substantive house amendments that the government is proposing. It might be a good opportunity to circulate that now.

Amendments circulated pursuant to standing orders.

Jaclyn SYMES: We do have two house amendments. The first removes the provisions that propose to repeal the reverse onus test for young offenders for all but two of the most serious offences. I want to be really, really clear about this. I did an extensive doorstop this morning to take the media through this. We are still committed to developing reforms to keep children out of custody and to providing an approach to bail that recognises the unique vulnerabilities and complex disadvantages that children, particularly young offenders, can face. The amendments pause these reforms to be considered at a later date. It is my view that a discussion about child bail would be better done as part of the youth justice package, and that is a package of reforms that is being developed between me and the Minister for Youth Justice. It includes changes related to the criminal age of responsibility and is on track to be introduced into the Parliament early next year.

I want to also make it very clear that the advice from the experts and the evidence from those who interact with the youth justice system and the Children’s Court show they are comfortable with this pause. The reason they are comfortable with this pause is that the practical effect is minimal, because the current test, which is what we will be seeking to maintain – so the status quo – which has a range of thresholds as applied to adults, which involve exceptional circumstances and compelling reasons before you get down to unacceptable risk, is a test that every child meets. Of course a child can demonstrate compelling reasons why they should not be in a custodial setting, so what happens in practice is that there is minimal discussion about the application of those thresholds and it drops back to the unacceptable risk test, which is what our amendments will be codifying in due course. But it will be prudent to have a broad conversation about youth offending, youth crime and the measures that the government are taking to respond to those challenges at a later time and it is also complementary to a discussion about raising the age. So that is the rationale, and it also means that we can focus on the most urgent elements of bail reform – that is, ensuring that low-level offenders who do not pose a community safety risk are not unnecessarily remanded. Indeed that is the underlying purpose of the reforms today.

The second house amendment legislates a statutory review of the reforms to be conducted two years from the commencement of the act. It goes without saying that we want to make sure that these laws are achieving their intended purposes. We will be monitoring the whole time. I am on the record that we are fixing a system that has had unintended consequences that we want to address, so we want to make sure that these laws indeed do that. I have no intention of waiting for a two-year statutory review to inform my thinking or the government’s thinking about how they are operating. We will continue to do that. But having a formal two-year review is certainly fine. I will continue to closely monitor these regardless.

I have closely and carefully considered the counterproposals put forward in these reforms by way of amendments from non-government members, from stakeholders and indeed others who have an interest in this bill. I do understand the intent behind them, and for the most part we seem to be in a similar headspace about where we are headed here. I am feeling optimistic that we are going to get a really good bill at the end of those discussions today.

I do want to ensure that bail is not used to unnecessarily lock up people who do not pose a risk to community safety. We want to make sure that people are not facing arbitrary punishments for offending and instead get to have their matter resolved through the courts with the appropriate consequences. Above all, we want a system of bail that is fair and safe and considerate of the people who apply for it, and our bill is a significant step in taking us there.

One of the critical components of reducing the rates of unnecessary remand on low-level offenders comes from our proposal to remove the two Bail Act 1977 offences introduced in 2013, which are breach of a bail condition and committing an indictable offence whilst on bail. I want to make it clear that these are standalone offences on top of the offences that a person would already face for committing the breaches themselves. These offences do not make our community any safer. We know that they do not act to deter people from reoffending. But what they are doing is most often they are uplifting a person’s bail test to make it more likely for them to be remanded because of the quantity or the cumulative effect of their offending rather than for the risk of the offending itself. The opposition’s amendment to keep the offence of committing an indictable offence while on bail will mean that people will continue to be double uplifted to the exceptional circumstances category for committing an indictable offence while on bail, even if it is a non-violent low-level offence. This would frustrate the entire purpose of this bill. Making sure bail is assessed on the basis of the relevant risk posed by the applicant based on their offending and circumstances is what is paramount.

If we think about how it would work in practice – say I am charged with theft after stealing a loaf of bread from the supermarket, which is a non-scheduled offence – I am entitled to bail unless I am considered to pose an unacceptable risk to the community. If I am granted bail but then I am charged with a second theft for stealing a litre of milk from the supermarket, I will be facing not only another count of theft but also a whole other count of committing an indictable offence whilst on bail. Theft is an indictable offence, which could mean up to three months in jail on that charge alone. I will also now not have a presumption of bail, and I will be facing a reverse onus test of showing a compelling reason to be released on bail, which is in effect bringing the two offences of stealing a loaf of bread and stealing a litre of milk to the same test as someone who is accused of rape. This is the exact issue that is leading to unnecessary remand of non-violent offenders, and it is why the government certainly cannot support the Liberals’ amendment.

I want to touch on the Greens’ amendments. In terms of the Greens’ proposed amendments, there are quite a few that cut across a range of areas of the bill. I want to address them in detail. I expect that we will get a chance to do this in committee, but as they are going in one job lot, I am not sure how we will tease them all out, which is why I would like to take you through my rationale in the summing up. I want to be clear that our bail system must cater for the entire spectrum of alleged offending and the complex web of circumstances that often surrounds them. Having a structured system that distinguishes between low-risk and high-risk offences and correlating tests for bail is not only appropriate but also consistent. As I think Ms Payne identified, it would be consistent with the approach of every jurisdiction in the country. It is why the government cannot agree to there being only one single test applied to any offence, which is part of the Greens’ amendments. We accept that for the justice system to apply there must be nuance and there should be greater consideration for the individual circumstances relevant to an applicant’s offending. One test is not the way to go about achieving that.

The Greens have further proposed changes to the scope of the unacceptable risk test in a way which I am advised is actually just really clunky and quite unworkable. It would see bail decision makers apply one test to all offences other than terrorism, so offences from graffiti to multiple homicides would be in the same category. The effect of this would be to make a series of changes to risk thresholds that are already well understood by bail decision makers. Even if we were to agree to it, it would be dangerous to try and implement that in only six months because of the massive change that it would create. In contrast, this bill that the government has put forward refines the unacceptable risk test so that a risk of minor non-violent offending cannot by itself result in an accused person being remanded. We are retaining the other three limbs of the test relating to safety or welfare of another person, interfering with a witness or failing to answer bail. They are fundamental to the purpose of bail, which is about ensuring that a person charged with a crime fulfils their commitment to face their charges both without undue restrictions on their liberty and without unacceptable risk to the community.

There is another amendment put forward by the Greens around bail data reporting. I think it is important to take you through my rationale for not being in a position to accept that amendment. I certainly do understand the intent behind the proposal, and I am not at all opposed to there being consistent, clear bail data collated and released – in fact it is very important as we begin to monitor the changes in these bail reforms that we have access to data. Where this amendment falls short, however, is in the way it goes about proposing how the data be provided. It oversimplifies how our bail decision makers are able to collate and provide data. The scope of the information the amendment seeks is not something that is readily available, and it is overly cumbersome to need to have it ready for a report each year. This amendment could not be realised if it were to pass, because it just does not fit with the current system. Instead, what we have done, through consultation on these reforms, is work with the courts to discuss what our expectations are on bail data and work with them on how this can be better collated. As I have said, of course data is important, and we will be working with our bail decision makers to ensure that they are able to collate and present it in the most useful format.

Other amendments that have been put forward by the Greens include changes to guiding principles and a proposal to include a no-real-prospects test within the unacceptable risk test. The substance of these amendments has already been captured by the bill. Basically, what they are proposing is pretty similar to where I started, but I ended up ruling it out through consultation and teasing out how that would work. I understand where they are coming from, because I came from the same starting point, but I have been convinced that that is not how this should operate in this bill.

I might seek leave for 2 minutes extra time just to finish up, if that is okay.

Leave granted.

Jaclyn SYMES: This is a bill that makes sense. It is proportionate, and it has been developed over a long time and subjected to a lot of consultation and a lot of really deep thinking and sleepless nights, I can tell you. I acknowledge that it does not address every aspect of our bail system that people would like changed or optimised, nor does it create a system that prevents all forms of crime occurring. I wish I could do that, but I cannot. What these reforms have done is allow us to reopen the discussion about how to do better, and this is a discussion that I know will not end with the passage of this bill. I am confident that we have landed in the best position possible at this time, and I have faith that these laws will make a key difference to the lives of Victorians charged with crimes, who have the right to be presumed innocent and who fundamentally have the right to a safe, fair and balanced system when applying for bail.

As I have indicated, this bill has had quite a journey, and I do want to take the opportunity just to acknowledge the people that have worked very hard on this. The stakeholders that I would particularly like to call out are the Aboriginal Justice Caucus, in particular the co-chairs Chris Harrison and Marion Hansen; the Victorian Aboriginal Legal Service – Nerita Waight has been an invaluable source of information and testing in relation to this legislation and how it can do better for Aboriginal people; and the Yoorrook justice commissioners, who certainly put me through my paces in relation to bail, and indeed their questioning and thoughtfulness certainly was a part of my thinking in relation to landing this legislation. There has also been a parliamentary inquiry that looked at issues such as this and made recommendations, many of which have been picked up by this bill. I know a lot of people gave evidence to that committee, and I do thank them, because lived-experience voices are always invaluable in the justice space. I want to call out the Magistrates’ Court and the Children’s Court – they have both been really engaged in this process – as well as Victoria Police and the Police Association Victoria.

I certainly am just indebted to the hardworking public servants from the Department of Justice and Community Safety and everyone who has worked on these reforms over many years. In particular I would like to note Kate Houghton, the secretary; Marian Chapman, Katie Bosco, David Atkinson, Angela Langan, Simon Disney and Jessica Symonds; and also Sam Towler, who is a senior adviser in my office. This is her first bill and something she can be immensely proud of because she has really driven this for me. I thank her for her efforts and look forward to the committee stage to tease out some of these vitally important issues for a better Victoria.

Motion agreed to.

Read second time.

Committed.

Committee

The DEPUTY PRESIDENT: Just before we start, Ms Copsey’s group 1 amendments on sheet KC13C propose to abolish the two-step tests and alter the unacceptable risk test. If these amendments are successful, Ms Symes’s and Mr Mulholland’s group 1 amendments will no longer be capable of being moved. I will call Ms Copsey to move and test her group 1 proposal first. If Ms Copsey’s amendments are defeated, then Ms Symes’s and Mr Mulholland’s group 1 amendments may be considered. We will do questions on clause 1 before we deal with amendments.

Clause 1 (15:18)

Evan MULHOLLAND: Repealing the offence of committing an indictable offence while on bail will mean that people given the privilege of bail who then abuse it by committing an indictable offence will not necessarily face an uplift in the test for them to get bail again. This offence was introduced to encourage compliance with bail. Why does the government believe that the community will be safer if it is removed?

Jaclyn SYMES: Mr Mulholland, first of all, what a bill to start on as shadow minister. This is a very complex bill, so I am more than happy to take as much time as we need to get through this. On your question, I am happy to answer in clause 1, but there are further clauses down the track that it specifically relates to. But I am happy to do that here if you are comfortable with that.

Evan MULHOLLAND: Yes.

Jaclyn SYMES: Okay. I went through some of this in my summing-up. When you commit an indictable offence while on bail there are a number of consequences for that subsequent offending – you can have your bail revoked, you can have your bail conditions altered. What is playing out in the experience is that by adding an additional offence basically you get two offences for the one offence. You are on bail, you commit an indictable offence while on bail and you get charged for that, and then you get an additional charge because you committed that offence while you were on bail. That attracts a maximum three-month sentence. It is not an offence that has any assessment of community safety; it is just an add-on offence. But what it is doing is it is uplifting the onus on the offender or on the person who is on bail, and it makes it harder for them to get subsequent bail, particularly if they are up into the exceptional circumstances test – that is extremely difficult to prove, and it is one of the main drivers as to why we are having low-level offenders remanded in the first place.

One of the main reasons for this legislation is to avoid having vulnerable cohorts on remand who are not posing a risk to community safety, and a lot of those people are identified by virtue of the fact that they are on remand for shop theft, and they are on remand for multiple shoplift because once they commit the second or the third offence the test gets higher based on the fact of committing an indictable offence whilst on bail. In addition to that, it adds to their rap sheet. It is just another charge to answer that has no community safety element, so it is arguably taking up the time of the courts as well because the matter has to be discussed. Really it is just an extra offence that is having consequences that we do not think are appropriate, and we do not think that there is any argument for community safety in relation to removing that offence as we are proposing to do.

Evan MULHOLLAND: I will go to what you were just talking about. I noticed your example in your summing-up where you said in opposition to our proposed amendment to come that someone could be charged for stealing a loaf of bread and receive bail and then the same person could be charged for stealing a litre of milk and receive the same test as someone charged with rape. I just want to point out clause 36. I am of the belief that that basically provides for amendments where the bail decision maker must take into account whether the offence is likely to lead to jail, and if not, there should be no remand. Doesn’t the bail decision maker have a different obligation to consider compared to a rape charge?

Jaclyn SYMES: We think that that is unnecessarily complicated for a bail decision maker and that the proposals will simplify that.

Evan MULHOLLAND: I will leave it there because I have got a few to get through and I know Ms Copsey wants to get in some questions as well. But that was part of our understanding of what at least clause 36 does, and one would have thought with some educational training for the bail decision maker there might be appropriateness placed on their decision. I will move on, though.

Does the Attorney-General accept that by removing this offence many people who commit indictable offences while on bail will face a softer test to receive bail again?

Jaclyn SYMES: I am reluctant to talk about the tests in terms of ‘softer’ and ‘tougher’. What we are proposing to do is to respond appropriately to the offences on their merits, and fundamentally community safety is the number one priority when bail decision makers are considering whether to grant bail or not. As I have explained, if you are a repeat offender, if you commit a crime whilst on bail, there are a number of options available to a bail decision maker. They can revoke bail. The court can impose harsher requirements or conditions for bail, and we do not want to see low-level offenders who do not pose a risk to community safety on remand. It is not an appropriate response. It is disproportionately impacting vulnerable cohorts, and we think that there are better ways to deal with that. However, the proposals do allow for the consideration of risk in looking at the welfare of persons or the community. So if you are a serious repeat offender of low-level crime, you can still be remanded. But I think the other point I would like to make that gets a little bit lost in the debate here is that it is not remand in, bail out. If you are bailed, there are a range of measures. Whether you are subjected to supervision and oversight, you have reporting requirements or you have exclusion zones, there are a range of conditions that are placed on you whilst you are on bail, and if you breach bail or commit another offence then they are all relevant to the consequences that the justice system might consider appropriate for subsequent offences.

Evan MULHOLLAND: I just want to bring you to some comments that you made in media reports. I just want to ask what you meant by ‘perception of a youth crime crisis that does not exist’?

Jaclyn SYMES: For context, I was asked today about the house amendments that the government is proposing that put a pause on our changes to youth bail. In explaining the rationale for the government’s position, we have a youth justice bill that is well progressed. It contains, for example, raising the age from 10 to 12 in it and a range of other measures that are in the remit of the Minister for Youth Justice. The current practical application of bail to children is that even though they are subjected to the same tests as adults right now, in practice children can quite easily demonstrate – or those that represent them can – compelling reasons and exceptional circumstances as to why they should be bailed. It then jumps back quickly, regularly, almost all the time to the unacceptable risk test, so in that sense what I am wanting to do with the child bail laws is to codify what is currently custom and practice. In that sense there is no urgency for those, because I do not have case examples of young people who are currently on remand unnecessarily, as opposed to the adult system, where I am talking about low-level offenders – shoplifting and the like – that are. So we are catching up but not fixing an additional problem. I was asked about the benefits of moving that legislation to the youth justice bill, and I remarked that we have had some recent really concerning behaviour from young people that has got people concerned. I acknowledge that.

I have said that it is not only my role to create laws that respond to crime but my responsibility to ensure that the perceptions of crime are something that we are managing as well. It is my view that by having child bail considered in a youth justice bill which looks at a range of matters and a range of programs – the way the courts can deal with considerations of a child’s family circumstances, diversion in the context of raising the age, the alternative services model – it is going to be a clearer conversation about how the government and its partners deal with young offenders in a holistic way over there, rather than in this bill, when it is not urgent. I have amendments that are being put by the opposition which are saying, falsely, that if we do not adopt their amendments, then there are going to be young people on the streets committing crime who should not be there. That is a false narrative. So I think that to combat that false narrative the Liberal opposition have been purporting as to the benefit of their amendments, let us go status quo and have that conversation at a later time, at the start of next year, in the youth justice legislation.

Evan MULHOLLAND: I am just getting confused a bit because you did say that there is an element in the community and events we have seen in the community recently that are of some concern, but you still also at the same time suggest that it is not a problem that exists. How do you know that it is not a problem that exists, given that offences by 10- to 14-year-olds have gone up by 36.6 per cent over the past two years?

Jaclyn SYMES: Can you clarify your question, Mr Mulholland? Are we talking about perceptions of crime, or are we talking about crime stats? You started your question with perceptions of crime.

Evan MULHOLLAND: I am asking how you believe it is a perception when the statistics show that there is actually a youth crime crisis.

Jaclyn SYMES: No, mate. There is not a youth crime crisis. And that is not just me saying that; that is Victoria Police saying that as well. This is the exact type of narrative that I think we should be avoiding, because what the crime stats show is definitely, yes, we have seen some trends post COVID in terms of youth –

Georgie Crozier interjected.

Jaclyn SYMES: The levels are still lower than pre COVID, Ms Crozier. Sure, I am not going to shy away from the fact that trends going up is something that we should be conscious of and respond to, but I will not under any circumstances agree with you that there is a youth crime crisis. And none of the experts will agree with you either.

Evan MULHOLLAND: That is interesting because you, in your summing-up speech, Attorney, thanked for their consultation work the Police Association Victoria, who does oppose this change in a letter from the secretary.

Jaclyn SYMES: Which change?

Evan MULHOLLAND: To remove the indictable offence. The changes dealt with in our amendment to change back.

Jaclyn SYMES: But that has got nothing to do with youth.

Evan MULHOLLAND: Well, we tend to think that it is all linked, but I will go through to my comments quoting Wayne Gatt. He said that, in their view, such amendments go too far in trying to remedy a perceived driver of low-risk offenders finding themselves on remand. He said that narrowing the application of the uplift provisions as proposed comes at a significant risk to public safety and that, in the absence of anything else, they oppose it. Why have the government rejected the warning of the police association that removing this offence comes at significant risk to public safety?

Jaclyn SYMES: So we have now moved off youth onto your concerns about us opposing your amendment. Even if you read the coroner’s decision in relation to the Veronica Nelson matter, it runs very comprehensively through the consequences of uplift as a result of committing an indictable offence whilst on bail. There are many people that have been talking to us for some time about their concerns about unnecessarily remanding non-violent offenders who do not pose a risk to community safety. That is what is driving the reforms that are in our bill.

Evan MULHOLLAND: I have just one last one on this one. Is the government prepared to accept political responsibility for consequences to public safety as warned by the Police Association Victoria by pushing ahead with the abolition of this offence despite warnings from the police?

Jaclyn SYMES: Mr Mulholland, it is not that offenders who commit crime now no longer face a test. If you commit an indictable offence whilst on bail and it is a low-level offence as per the schedules, you just are not uplifted to having to have the reverse onus of demonstrating that you have compelling reasons not to be remanded. It falls back to the onus on the prosecution to demonstrate that you are not an unacceptable risk to community. We have refined the considerations that the bail decision maker has to consider in relation to community safety and community risk. So we are avoiding the consequences of unacceptable risk as best as possible, bearing in mind that with all respect to bail decision makers, none of them have a crystal ball and assessing what someone is going to do once they have been bailed is an extremely difficult task. But if someone is not deemed an unacceptable risk to the community just because they have committed a low-level offence, then we think that bail is an appropriate course of action for that bail decision maker to make.

Katherine COPSEY: I have nine questions at clause 1, and then I have just a couple of questions on one of the government’s house amendments, which I will put when we move those amendments. My first question: Attorney, what modelling have you done to forecast what reduction of prisoners on remand will flow from the reforms in this bill?

Jaclyn SYMES: Thank you, Ms Copsey, for your question in relation to modelling and impacts. A lot of it will be informed by the stakeholders and the experience as the laws come into effect, but we are expecting to reduce remand for minor repeat offending where the accused person is a low risk if released on bail. We know that remand rates increased after the 2018 bail reforms, consistent with the government’s intention to ensure tough bail consequences for serious alleged offending. However, we also know that the net was cast too wide, and we know the remand rates as a consequence increased for those accused of the minor offences that we have been discussing. For those offences we expect remand rates to start returning to pre-2018 levels, as the accused will still need to pass the unacceptable risk test, but we know that the risk posed by those accused of more minor offences is typically lower. It is not possible, with any certainty, to provide a reduction by a specific number, but that is why it will be important to monitor the reforms. We did see an uptick after 2018. The coroner and others have indicated in their experience why that is so, and I have just had the conversation with Mr Mulholland about a lot of that being driven by offences such as committing an indictable offence whilst on bail. Once that is removed, we anticipate a reduction in remand numbers. It is something that we will keep a close eye on. Hopefully we will be in a position to provide an ongoing update on a regular basis.

Katherine COPSEY: I think you have partially answered this next question, but I will just check. There is nothing that you are aware of, Attorney, that would show, disaggregated across population groups, any type of modelling or prediction? Can we get an indication of the kind of reduction we will see in the numbers of First Nations people in prisons on remand?

Jaclyn SYMES: We certainly know that Aboriginal people are over-represented in the criminal justice system, and it includes having higher remand rates for these low-level repeat offending type incidents. It is not unexpected given the crossover of disadvantage that many Aboriginal people may experience. There is very often a correlation between property crime and disadvantage, so it is those cohorts that we are hoping have the greatest benefit. That is the driver for the reform, because we have heard over some time the disproportionate harsh effect that the laws have been having, particularly in the repeat offender uplift type situation. We are certainly hoping to see a reduction that lessens that disproportionate impact on those vulnerable cohorts.

Katherine COPSEY: Attorney, the coroner investigating Veronica Nelson’s death in custody recommended in section 4.13 of that report that all bail decision makers, courts, police and bail justices be required to collect and regularly publish data on bail applications, outcomes and offences. You have decided not to implement that recommendation in this set of reforms. Can you explain why, please?

Jaclyn SYMES: I did touch on some of the concerns around or the practical realities I suppose of data collection and what we as a government have asked our partners to do. We are and will continue to be accountable for transforming the system structures and service delivery to better reflect and enable the aspiration of Aboriginal communities, and we are certainly carefully considering the recommendations arising from the truth-telling process as a whole and will respond in due course in relation to that. A lot of those issues are similar to what the coroner indicated in his findings and recommendations as well.

The Department of Justice and Community Safety use a range of information sources to monitor and advise on the impact of reforms, including operational data from justice agencies, information received from justice partners and stakeholders and, as you would expect, the public discourse. There are limitations in the quality, access and coherence of the datasets. Bail decisions are made by a range of decision-makers, with data recorded for operational, not monitoring purposes, so this makes monitoring at the point of bail decisions challenging at this time. As I have indicated, the data clearly has demonstrated the impacts of the 2018 reforms on over-represented and disadvantaged cohorts, and we have acted upon that data. But we will continue to work with the department to ensure that we have the necessary tools to monitor the impact of the reforms.

Regardless of any legislative requirement, we do intend to monitor the reforms on an ongoing basis to understand whether provisions are operating as intended, including continuous discussions with stakeholders. I certainly find that talking to people with lived experience is just as valuable as the dataset quite regularly, but we will continue to ensure that the courts and the department are having ongoing conversations about the collation of data and how it can be better collected and reflected, to benefit, on not only how this reform is going but whether indeed there are any other issues that data demonstrates we should act on.

Katherine COPSEY: Thank you, Attorney. I appreciate that commitment for ongoing monitoring and to ensure that our future policy and legislation is informed by the best data available. Given, as you said, there are limitations to the datasets and no disaggregated data currently on bail applications, bail outcomes and bail offences available, are you able to be more specific around the kinds of investments and supports that the government is considering to assist the courts, police and bail justices to record and report on bail decisions?

Jaclyn SYMES: Ms Copsey, we have made several investments across the courts over the last few years for system upgrades which we know are already up and running across civil divisions. In terms of the Magistrates’ Court, for example, and their upgrades and systems, they know that whilst they are rolling out their work and their upgrades that there is a requirement from us for them to ensure that in the development of their systems they are better placed to capture and indeed produce the data that we require. Those investments have been made particularly in the courts in relation to police data and having a conversation about how they can complement each other.

Jeff BOURMAN: Attorney-General, you mentioned during the course of this about someone with a loaf of bread getting sent to jail, and then a jug of milk and so on – minor-level offending. So if they steal a loaf of bread one day and then a truckload of bread on another day, where does that fit? I am seeing a bit of a dissociation between theft and theft. What is minor theft? Shop theft is one thing, but when does a theft becomes serious enough for more serious bail conditions? By virtue of that, we also have other offences, such as driving and drug offences, that are not a direct threat to public safety, but where is the line expected to be for the bail decision makers before they can just say, well, it is a petty theft or it is a course of conduct or it is a big theft – a theft of a motor car, for instance. What is the expectation that people will have to work with as to when they need to take an indictable offence, which theft is even if it is a shop theft, more seriously?

Jaclyn SYMES: All theft is an indictable offence regardless of the quantity. Serious offences and indictable offences are not one and the same, and your question comes down to, I think, whether things can be heard summarily or whether they are an indictable issue, and most of that is set out in the schedules, which we are not seeking to change.

Jeff BOURMAN: I understand the difference between indictable offences tried summarily and so on, but we seem to be setting an expectation in here today about bail. Bail in my understanding is an undertaking given by the person to not misbehave after they have been charged with an offence, until the court date. Now, do I agree with people being remanded for just a few shop thefts? Hell no. But we seem to be getting into this grey area where driving offences, which are generally summary offences in their own right, could be included in this even though they are not in the Summary Offences Act 1966. We had an instance in 2016 when someone was on bail for driving offences, drug offences and a violent offence. I cannot say ‘guarantee’, because there are no guarantees, but what level of comfort can we give the people that we are not going to have another Gargasoulas running around because the offences that were originally committed were relatively minor, but they personally were uplifting them? At what stage are we going to draw the line and allow the bail decision makers to take a harder stance on what look to be lower level offences but are clearly opening the door for something else?

Jaclyn SYMES: It is incredibly difficult to make laws that apply to human behaviour – it is tough ‍– but what we have tried to do here in the unacceptable risk test is really capture an understanding of the person’s offending and its impact on the community or an individual and therefore allow the bail decision maker to take into consideration how risky that person being on bail would be to further causing harm. In and of itself a concern that someone will reoffend is not going to be enough, but if it is somebody who has done it several times and they are hitting the same business, or multiple businesses, for example, then the cumulative effect of that risk starts to change because there is an unacceptable risk that they will continue to cause harm to a person or the community by virtue of their repeat offending.

We know that there are underlying causes for a lot of crime. Often when people enter the justice system it might be one of the first times, or indeed a subsequent opportunity, to intervene in that person’s life in a positive way. Granting bail with conditions to perhaps deal with underlying causes, such as ensuring that they are connected to housing support, drug and alcohol counselling, employment programs and the like, is a better outcome than remanding someone. But if you continue to see the same person time and time again, they are going to struggle to demonstrate to the bail decision maker that they are not an unacceptable risk – or the prosecution would find it easy to demonstrate that they are an unacceptable risk. Is that getting there a little bit?

Jeff BOURMAN: Attorney-General, you used the word ‘several’, which I am not going to ask you to quantify. I like that you used driving offences as an example, because driving unlicensed is an administrative offence, doing a bit over the speed limit can be a safety offence, but I have seen over the years a number of people, particularly in motor cars, graduate from doing silly things to one day being in a pursuit and killing someone. There is an opportunity to intervene – and I am not suggesting we should be running around remanding people for driving without a licence – that I think is being lost by the way this is being done. I guess that is more a statement than anything else. I might just move on. Do you want to make a comment on that?

Jaclyn SYMES: I think I would just point out that we do have bail decision makers that are well placed to use their discretion in these matters. It is not an easy task at all. That is why we also fleshed out in the unacceptable risk test the limbs of welfare. This bill does nothing to change the meaning of the terms ‘safety’ and ‘welfare’ as they appear in the risk test because they are quite well understood by bail decision makers. What we see time and time again is bail decision makers make hard calls, and we hope that they get them right, and usually they do. I expect that under the new system they will continue to do that.

Jeff BOURMAN: I will say most of them get it right, but unfortunately not always, and I guess it is up to us to give them the tools to do it with. Again, I guess that is a statement. Bail, as I said before, is an undertaking basically by the person not to misbehave. I understand the uplift part of the test, but by removing the offences of contravening bail conditions and committing an indictable offence on bail, what incentive is there for anyone to bother? They will get bail, they will come back in, they will get bailed again as long as they are not literally in on an hourly basis. What incentive is there for them to not misbehave?

Jaclyn SYMES: I was just going to take you to the fact that the coroner recommended that we remove three bail offences. We landed on only repealing two, not the failure to appear for bail. We decided that it is a fundamental underpinning of bail that you should respond to that, so I guess that would be my high-level answer to that. Also we are removing the offences, but we are not removing consequences, as per the conversation that I had with Mr Mulholland. If you commit a crime while you are on bail, you are charged for that crime and you can have your existing bail revoked or you can have those conditions changed. So we would say that you can get the same outcome from the changes that we have made without the negative impacts that we know exist under the current laws.

Jeff BOURMAN: I understand what you are saying. I guess I disagree to a point, because if you had made it just committing a summary offence on bail, that would be one thing, but committing an indictable offence is another serious offence in the context that it is more serious than a summary offence.

Jaclyn SYMES: But you will then be judged for the offence that you committed. The problem that we are having is that if you commit an indictable offence such as shoplift or shop theft, it is being treated the same as another indictable offence that on its own consideration would warrant perhaps revocation of bail or indeed really harsh conditions. It is the lower level indictable offences that are automatically not being distinguished and pushing people up that we are trying to address here.

Jeff BOURMAN: Yes, I understand that, but rather than – I know you will disagree with my characterisation – weakening the bail laws, I would see an opportunity to perhaps, as we have listed for the schedule 3 for this bill, list some of the offences that would be subject to a lesser bail. The difference between stealing a loaf of bread from a shop and stealing, I do not know, $40 million in cash, is a completely different thing, I get that. But it seems to me that we are leaving the potential – I am not saying it is going to happen, but we are leaving the door open – for people that should not be bailed to get bailed, and that is why I get a bit funny about this. I am not interested in shop theft, and if I remember correctly – and it was some time ago – there are diversion programs, or you could more or less give them what is effectively a warning for those sorts of things. The way I see this playing out ‍– and I am not talking about blood on the streets and this and that – is potentially people are just going to game the system and just keep on going in, going out, going in, going out, and there is no hard line or even soft line as to when enough is enough. To leave it up to the bail decision maker with no guidelines – and I guess this is why we have committee of the whole – I think is a bit tough for them. They will never know when is enough and whether they should be slotting someone or whether they should be putting them out on bail again.

Jaclyn SYMES: There are guidelines that are clear, and we have got six months implementation once this bill is passed to refine any of those things. I think the in, out, in, out that you refer to is envisaged to be caught by this legislation that facilitates an unacceptable risk test that can consider a cumulative effect. It is not as though we have decided that anybody that engages in shop theft can never be remanded. If it is again and again and again, then they are going to tip over and they will fail to pass. They will be an unacceptable risk. But also – and you I know will understand this better than some – some of the issues you are raising can be resolved not through bail reform but through summary offences reform.

Jeff BOURMAN: That is the point of what I’m saying.

Jaclyn SYMES: Yes. One project at a time.

David LIMBRICK: I have a couple of questions that I will just acquit in clause 1 if that suits the Attorney, and I shall make sure that the Attorney gets sufficient time to find the appropriate clause. My first question is on clause 33 and new section 3A(4)(a) and (b) and concerns taking into account someone’s connection to Aboriginality. New paragraphs (a) and (b) require the decision-makers to take into account someone’s Aboriginality and culture, and the idea of self-determination means that an individual can choose what importance that may have to them and to their identity. But one thing that is a bit concerning here is the requirement to take this into account. Doesn’t this undermine self-determination, especially in the case where someone may choose to not place importance on that cultural connection yet are being forced to have that taken into account regardless of whether they place importance on that or not.

Jaclyn SYMES: Mr Limbrick, we certainly consulted heavily with Aboriginal stakeholders in relation to this. One of the core principles of self-determination is of course that Aboriginal communities are involved in the development of legislation that impacts them. In support of that we engaged with Aboriginal organisations, community representatives, the Aboriginal justice agreement policy and legislative change collaborative working group, the Aboriginal Justice Caucus and other Aboriginal partners to come up with this, and they think that we have landed in the right place for those who want to identify. This does not force people to identify as Aboriginal. It is not about discounting their connection. The person can choose the evidence that they provide themselves.

David LIMBRICK: Another question I have is on new subsection (5) in the same clause, about how if bail is refused, then they have to either write down the reasons or record them through audio or video. My question is this: why isn’t that same information recorded if bail is granted?

Jaclyn SYMES: It is an accountability measure to ensure that the measures have been taken into account, and we would assume that if someone is granted bail, then it is likely that they have been.

David LIMBRICK: Shouldn’t granting of bail face accountability as well, though? If it turns out that that was a bad decision further down the track, it would be good to have the reasons that that bail was granted in the first place, surely.

Jaclyn SYMES: Yes, but what we are addressing here is a known disproportionate impact or disproportionality of Aboriginal people caught up in the justice system. That is what we are addressing here. We would like to see less Aboriginal people in the justice system. That is the purpose of ensuring that we have oversight and accountability measures to ensure that people take this into account. So although there could be benefits if the information that you are articulating could be captured, there is a different motivation for why we are doing this.

David LIMBRICK: I thank the Attorney for her answer, although I do think it would be good to have that information if something went wrong. However, I will move on.

The next one is on clause 36, and this concerns the requirement for bail decision makers to consider an accused person’s likely prison sentence if they were found guilty. I have got a couple of questions on this. Firstly, what sort of safeguards are in place to prevent bail decision makers from setting remand terms for charges that would likely be dropped?

Jaclyn SYMES: Go again?

David LIMBRICK: It is saying that the decision-maker needs to make a determination on what they think the likely sentence would be, but in many cases some of these charges might be dropped. What sort of safeguards are there to prevent them from setting these remand terms based on that information even though it is likely that the charges would be dropped?

Jaclyn SYMES: How would a bail decision maker know that the charges are likely to be dropped? They are not involved in the investigation of a crime. To come back to the addition of a guiding principle for bail decision makers to consider whether there would be a custodial sentence, I think one of the Greens amendments goes to this. We started where the Greens amendment is. We considered whether a bail decision maker should have to consider what a subsequent sentence would be for that crime and, if it is low or not a custodial sentence, should that then rule out their ability to remand someone? Through consultation that got quite complicated and really was putting too much pressure on a bail decision maker to step forward into the shoes of presumably a magistrate more often than not to make a determination of a sentence without having any evidence in relation to an investigation. The reason we are not doing that is probably similar to the argument that you are putting – that I cannot really see a situation where a bail decision maker would have knowledge of the charges that are going to be dropped and, if that was their view, then I am sure it would form part of their consideration of whether or not to grant bail.

David LIMBRICK: This brings me to my next question. If the decision-maker made a decision assuming that those charges would stick and they estimated some sentence and then the charges were later dropped and it turned out the person was held on remand for a far longer period than they would have actually been sentenced to if they were found guilty, what sorts of remedies might that person have after the fact, because essentially they have served a longer sentence than what they would have got simply because of these assumptions during the bail process?

Jaclyn SYMES: It is rather hypothetical, where we are going, I think, because we are skipping over a few things. There are obligations on police to ensure the validity of the charges that they bring, and the bail decision maker can only make a decision based on the information that is before them. There have been calls before about whether bail decision makers should be held liable for the actions of someone who has been given bail post their being given bail.

It comes back to that point that assessing risk is incredibly difficult. For somebody who is bailed for a low-level offence who goes on to commit a heinous crime, without a crystal ball no-one is going to know that. To say that we should have a punishment or a comeback for a bail decision maker who could not tell the future is something that we need to avoid doing. They are trained, they are supported and in many instances it is a magistrate themselves who has a lot of experience. Did someone get it wrong? Did someone not predict the future? Just because someone goes on to do something does not necessarily equate to them getting the decision wrong, because you cannot keep someone who commits a minor offence locked up just in case they go and do something really bad. I wish we could. I wish we had the science to predict those things, but we do not. It is an incredibly difficult balance to assess risk, and I think going down the track of recourse or harsh consequences for somebody who did not see something that was not available on the facts that they had before them is dangerous.

David LIMBRICK: I think we agree somewhat about the crystal ball thing, but that is sort of what I am getting at here in that a bail decision maker is required to determine, if someone was found guilty and sentenced, what sort of term of imprisonment they would receive. Could the Attorney describe how a decision-maker can come up with those scenarios? They need a crystal ball for this side of it as well if they are going to assume if someone might get a term of imprisonment how long that would be. What sort of guidance are they going to get to make those decisions?

Jaclyn SYMES: That is exactly why we have made it a guiding principle and not something standalone in its own right. We did not want to put that requirement on bail decision makers to be able to fast-forward and put themselves in the shoes of a sentencing judge. We thought about it. I am sure we can all agree that you should not be on remand for longer than the sentence for the crime that you have committed. That is what we are trying to avoid through the guiding principle. The Greens have picked this up, but to go to the level of having the bail decision maker have a fully fleshed-out understanding of what they think will happen is something that we clawed back from because of the practical complications of that. That is why it is now a guiding principle.

Jeff BOURMAN: Attorney-General, to go back to the Aboriginality thing, in clause 33 new section 3A(4) states:

The requirement to take an issue set out in subsection (1) into account applies regardless of –

…

(c) when the person first discloses that they are an Aboriginal person.

Does that mean they can disclose they are an Aboriginal person during the bail hearing?

Jaclyn SYMES: Yes, Mr Bourman.

Jeff BOURMAN: Are they required to have anything to back up that declaration at the time? I am going somewhere with this, trust me.

Jaclyn SYMES: All right. No.

Jeff BOURMAN: Attorney-General, what is required for a Koori person to enter the Koori Court system in terms of whether they are known to the Koori community? I believe there is some sort of paperwork that they have. There is a standard – I do not want to use the word ‘identification’ – acknowledgement of cultural background to enter the Koori Court system, correct?

Jaclyn SYMES: I have not got the Koori Court act on me, but ‘Aboriginal person’ is defined under the act, and in relation to self-identification, we do not have a massive problem of people self-identifying that later then say they are not.

Jeff BOURMAN: That is the crux of my problem. What is to stop everyone from identifying as Aboriginal during the bail hearing when they are not and they are just trying to take advantage of the system? The Koori Court system will either not accept them, or they will change their mind. What is to stop people from taking advantage of that ability to identify during a bail hearing and then the ability to de-identify later?

Jaclyn SYMES: If I can answer your question with another question, what benefit does somebody falsely claiming to identify as Aboriginal gain in having the considerations of being Aboriginal in terms of their particular circumstances taken into consideration for the purposes of deciding whether they get bail or not?

Jeff BOURMAN: I love getting to answer questions. The point is – and I am not saying this in a derogatory way – there are things that someone must take into account if someone is Aboriginal when making their bail. I am not disputing that. It takes into account obviously the historical and ongoing discrimination, and we go through a whole lot of other things. That would possibly change a bail decision maker’s decision if someone claimed they were Aboriginal. It might tip them over or it might not. What I am trying to say is: what are we doing to stop people from just taking advantage of that when there is a cohort of people that that is clearly designed to help?

Jaclyn SYMES: Because for the cohort that it is designed to help it is to bring about a system that is fairer and more equal. So generally, if you are not Aboriginal, particularly if you are Anglo-Saxon, you are already at the point where we are trying to get the Aboriginal community up to. I am not sure how you can get a double benefit by having considerations that are designed to be culturally safe and take into specific consideration somebody’s background and the way that they connect with community and family – how that then provides a double positive for somebody who is not Aboriginal.

Jeff BOURMAN: This is getting a little bit off track, but if that was the case, why do we have all this stuff in here, all these things about what we must do for the Aboriginal people? I know blond and blue-eyed people that I know to have Aboriginal heritage, so does that make them Anglo-Saxon or does that make them Aboriginal? Whilst they could clearly claim Aboriginal heritage, we cannot just look at someone and say that they are or are not Aboriginal. What is to stop someone like me – not that I ever hope to be in a position of needing bail – claiming that to try and get some sort of advantage and just basically demean a cohort of people that that section is designed to help?

Jaclyn SYMES: Mr Bourman, if someone identifies as Aboriginal but cannot point to anything relevant to the Aboriginal considerations, then how is it going to give them an additional advantage or benefit? This is not about Aboriginal people getting a free pass out of jail, this is about ensuring that the justice system is conscious of historical issues and specific cultural issues. But if somebody does not suffer from that disadvantage, regardless of whether they identify or not, then they are not going to benefit from the considerations applying to them.

Jeff BOURMAN: I am a little confused. There is a whole lot of stuff here that the bail decision must take into account when making a decision about someone’s Aboriginality, which is obviously designed to minimise the impact on the person and keep them out of the system if possible.

Jaclyn SYMES: And to be safe.

Jeff BOURMAN: And to be safe. Yes, absolutely. I guess what I am saying is, and I think I have said it before: what is to stop someone who has no connection to Aboriginality, no connection to a community, no connection to it in any way claiming it, just seeing it as an advantage? Whether it is or not, what is to stop someone from just giving it a good old-fashioned try? And then that will mean the bail decision maker has to go through all the considerations that may or may not affect the outcome of the bail hearing, but they most certainly could. What protections are there? I guess that would be a better way of putting it.

Jaclyn SYMES: Mr Bourman, I have answered these questions.

Evan MULHOLLAND: Attorney, I have just got a couple more questions and then I will allow others to ask questions before moving my amendment. I will preface this by saying the opposition does not oppose this section of the bill. I will ask some questions in broad, but we do not oppose this specific part of the bill. We just have questions about it. It is similar to the questions of Mr Limbrick and Mr Bourman around Indigenous Victorians. Would I be right – I think I am – clause 33, new section 3A(1)(d)(i) –

Jaclyn SYMES: Go again.

Evan MULHOLLAND: Clause 33, new section 3A(1)(d)(i), requires that those making a decision on bail will have to take into account historical intergenerational trauma. I am just wondering in your humble opinion how that process will work.

Jaclyn SYMES: I was a bit more interested in what you thought you were right about. You started your question with ‘I think I am right’ about something, but then you –

Evan MULHOLLAND: No, I framed the question in a way around the process, the numbers and whatnot.

Jaclyn SYMES: Okay. There will be training for bail decision makers about how this is approached, and obviously it has been informed by close consultation with our Aboriginal partners in the justice system, and much of what you are referring to will be a matter for the submissions.

Evan MULHOLLAND: So the submissions to –

Jaclyn SYMES: Whether you get bail or not.

Evan MULHOLLAND: Yes, okay. But will the bail decision maker, and that could be a court, a bail justice, a police officer or a sheriff, be given any education or training on this kind of implementation – of them having to factor in intergenerational trauma?

Jaclyn SYMES: Yes. The department of justice will be supporting the Office of Public Prosecutions (OPP) and Victoria Legal Aid (VLA) to develop and deliver training to the legal profession, with materials to be provided to Victoria Police and the Judicial College of Victoria as well. The training will cover all of the reforms, but understanding of the Aboriginal-specific considerations will be a primary focus to ensure the considerations are properly applied. The training will both support the lawyers to understand what issues to raise and support bail decision makers to better understand how they should be applied in decision-making.

As raised during the Yoorrook Justice Commission’s hearings, it is also important for bail decision makers to regularly undertake Aboriginal cultural awareness training to ensure the significance of section 3A is fully understood and can be applied effectively when making a bail determination for an Aboriginal person. I understand bail justices and Victoria Police are already required to undertake mandatory Aboriginal cultural awareness training, and I can advise that a comprehensive cultural awareness program is being implemented across the whole of Court Services Victoria to include cultural awareness training for all staff, managers and training, HR training and judiciary-based programs. It probably would not be a bad idea if the Parliament thought about cultural training as well.

Evan MULHOLLAND: Just one last question, and it is based on our discussion before: how is it too difficult for a bail decision maker to determine whether an offence would likely end up with a prison term but it is supposedly okay for a bail decision maker to consider intergenerational trauma?

Jaclyn SYMES: I have gone through both questions. You are asking me for an opinion here. I accept that it is a hard job being a bail decision maker. There is a lot of pressure on you, and therefore we are hoping to have as much support as possible available for bail decision makers in these changes.

Katherine COPSEY: Attorney, I am sorry to take you back to the data that we were discussing earlier. I have one final question in relation to some of the datasets that you mentioned, which were through improved support for record keeping through the courts – for example, stakeholder feedback. You also mentioned conversations you are having with the police. My question is: will these datasets be publicly available?

Jaclyn SYMES: It is difficult for me to answer conclusively because I do not necessarily know what the data is going to look like yet either. I really want these laws to work. I really want the purpose of what we are trying to achieve to be able to be understood by the public, so I want to be able to demonstrate that. Yes, there is lived experience, and the stakeholders will hopefully be in a position to say ‘Yeah, those laws are really working’ or ‘They need some tweaks here or tweaks there.’ Much of that will benefit from data, so it would be my intention to be as transparent as possible in relation to these laws. I think coming back to the statutory review, if we find something that is not working before a statutory review, then I would like to be able to address that before such time. But obviously data is going to be one of the key sources of the ability to demonstrate how these are working and how they are not, so it would be my intention to make as much public as possible. But also, a lot of that data will not be mine. There is separation of powers with the courts and police hold their own data, so I cannot give firm commitments around what is available, but I agree with you – as much as possible would be desired.

Katherine COPSEY: To a different matter: across a number of royal commissions, inquests and so on we have had a lot of calls for simplification of the bail system. The Bail Act 1977 is a pretty unwieldy beast. I have not enjoyed tackling it in trying to come to grips with the Bail Amendment Bill 2023. But a complicated and confusing system does increase the risk of errors being made, and with the addition of a further schedule as part of this bill and the persistence of a number of tests that are complex in their application we are seeing additional complexity added to the Bail Act rather than simplification. The inquest into the Bourke Street attack heard that a police officer made six errors on the form handed to a volunteer bail justice who granted Gargasoulas bail less than a week before he murdered six people. The officer in question gave evidence that he ticked no when he should have ticked yes on six questions on the remand application. Given that bail decision makers have found previous less confusing versions of the Bail Act are complex to the degree that it makes their job difficult, are you confident that this more complicated legislation will be followed correctly by bail decision makers?

Jaclyn SYMES: I think just at the outset I would say that the level of complexity in the Bail Act is similar to legislation in other states. Simplification, reduction and less pages do not always equate to good laws. There are a range of important considerations and factors that go into balancing the presumption of innocence against the need to keep our community safe, but I think that for the crux of what you are trying to get to, a lot of that can be addressed through training and through continual monitoring and improvement.

Katherine COPSEY: Attorney, it is like you have anticipated my next question: what specific measures, guidance or practices for bail decision makers will the government be putting in place to ensure that additional complexity here does not result in additional human error?

Jaclyn SYMES: I went through a little bit of it with Mr Mulholland in relation to the work that the department of justice will be undertaking with the OPP and VLA to develop training for the legal profession. Also obviously Victoria Police and the judicial college will be involved. This will cover a range of matters that we are introducing in the bill. I have taken you through some of the cultural training that they do, but we also have a six-month commencement date. I know some people would have liked that to be quicker, and some wanted it longer, but six months is where we think we can ensure that we have got adequate time for implementation issues, including the adequate training. Obviously the statutory review will also ensure that the implementation is closely monitored and any issues that arise are addressed as quickly as possible, which goes to my commitment to not starting a review in two years time but having an ongoing monitoring of the changes that will feed into the statutory review. But indeed if we pick up any issues along the way then we will address them in real time.

Katherine COPSEY: When we have discussed this reform across the chamber in questions this year, you have said that when it comes to justice reform, including bail, this is not necessarily a ‘complete something and stop’ process and that you, as you have just acknowledged, will consider further refinements to bail as we go along, so when do you plan to bring forward the next set of comprehensive bail reforms through legislation?

Jaclyn SYMES: Ms Copsey, you will not even let me finish what I have started before we are on to the next one. I am on the record regularly as saying that justice reform never ends, and that is appropriate. I am comfortable that with these reforms, where we are starting here, we will address the most urgent changes needed to the bail system to have a more balanced approach, and, as I have articulated on several occasions, it is really about ensuring that those accused of minor non-violent offences are not unnecessarily remanded. One component that I have already identified as being on our reform agenda is youth bail, which we will be progressing as part of a broader youth justice package to be introduced into the Parliament next year. Beyond this we certainly need time to give the system the opportunity to incorporate our initial changes and review them to see what further work needs to be done before we start looking at new legislation, but I am not stubborn in regard to law reform. If we do something and it does not work or someone can demonstrate that we did not get the balance right, I will take steps to rectify that.

David LIMBRICK: I have got one final question on clause 36. This entire clause assumes that there is some process whereby the decision-maker can estimate probable time on remand. How do they actually estimate that probable time on remand? One of the things that we are trying to do with this bill is actually reduce time on remand because it is too much at the moment, so how would they estimate that?

Jaclyn SYMES: Can I just get you to repeat the crux of your question then?

David LIMBRICK: It is quite simple: what tools will the decision-maker have to be able to estimate the probable time on remand?

Jaclyn SYMES: It is predominantly around experience, precedent and training. For a lot of offences people can generally guess a range just based on custom and practice. The bill will add additional factors to the inclusive list of surrounding circumstances that the bail decision makers must consider when applying the tests and any applicable reverse onus things, for example. There would be submissions from the parties as well, so it is not that you are presented with a set of facts and you just have to make a decision based on that. You will have submissions from both sides, which will help you to balance it and work it out. And I think they could make submissions on ‘We propose that should this proceed to a conviction, it would amount to blah’ or –

David LIMBRICK: I think the Attorney may have misunderstood my question. I am not talking about the estimated potential sentence, I am talking about the estimated time on remand, because the decision-maker has to take into consideration the estimated sentence and the estimated time on remand. The heading in this clause says:

… where probable time on remand exceeds likely sentence of imprisonment

That implies that the decision-maker somehow must have some insight into the potential amount of time that they would remain on remand, but I do not understand how that decision-maker would know that information or what tools they would have to estimate that.

Jaclyn SYMES: We will pick up a bit of that in the training, but experience and submissions would go a long way to forming a clear picture of what that would look like.

Katherine COPSEY: Attorney, in relation to future bail reform, can you please outline specifically some of the additional changes that you will prioritise in relation to reforming bail? For example, inquiries and commissions have called for the wholesale review of the Bail Act – a rewrite. Will you pursue this?

Jaclyn SYMES: I am certainly not in a position to be ruling anything out. Within these reforms we have considered the recommendations made by the coroner and by the parliamentary inquiry into the justice system, and obviously I meet regularly with a range of stakeholders who are strong advocates in relation to changes or suggestions in this space. But other than youth bail, which I have already addressed, I am not in a position to make any further announcements today. My door is generally pretty open to people that want me to look at different things, and I am always open to those suggestions to make the justice system better.

Katherine COPSEY: Attorney, can you confirm that you will give further consideration to the outstanding recommendations from the inquest into the death of Veronica Nelson?

Jaclyn SYMES: Yes, Ms Copsey. I think many of the recommendations have been acquitted or acquitted in some way or in a different way to how coroner McGregor set them out. I commenced the work on the bail reform before the coroner’s findings – before that case. So we were able to indeed ensure that we could give due consideration to the recommendations or the findings of the coroner in the development of our legislation, but it was certainly not my intention to hold up where we had got to with a view to making a call on all of the recommendations. So yes, they are still alive.

Katherine COPSEY: This is my last question before a query on the house amendments. In the Veronica Nelson inquest, coroner Simon McGregor concluded that the Bail Act:

… has a discriminatory impact on First Nations people resulting in grossly disproportionate rates of remand in custody …

and also that sections 4AA(2)(c), 4A and 4C of the Bail Act – and a number of others that I have not quoted – are incompatible with the Charter of Human Rights and Responsibilities Act 2006. Given this, Attorney, why are you allowing the reverse onus tests to persist?

Jaclyn SYMES: I do not think your question necessarily flows automatically, because the coroner did not say that any reverse onus was incompatible with the charter. What he said was that those provisions are on the whole incompatible, and then he recommended the removal of only certain elements of uplift provisions of the act. He did not recommend removing all reverse onuses. The bill will remove most elements of the uplift provisions identified by the coroner.

I certainly acknowledge that in addition to repealing the uplift of unscheduled offences to a reverse onus bail test, the coroner recommended repealing provisions that uplift a schedule 2 offence, such as aggravated burglary, to the exceptional circumstances test due to, for example, being committed while on bail for another schedule 2 offence. This is recommendation 4.1, where the coroner refers to this as the ‘double uplift’. We did consider this, but the bill will not be acquitting this recommendation, the reason being that the offences in schedule 2 remain serious offences in their own right. So a person on bail for a schedule 2 offence such as armed robbery who is charged with a second armed robbery will continue to be required to establish exceptional circumstances to justify their release on bail. Importantly, the reform will mean that double uplift can no longer occur, which is consistent with Coroner McGregor’s recommendations.

The statement of compatibility for this bill outlines the government’s position on the compliance of the bill with the charter, including any concerns about reverse onuses and how they can align with the charter. Importantly, the statement of compatibility notes that the balance of these amendments means reverse onus tests are only applied to the most serious offending identified in the schedules and to those who pose a terrorism risk or have had a terrorism record. This does in our view reflect a much more balanced and targeted approach by responding to the challenges arising from the inflexibility of the current bail laws and their potential for arbitrary outcomes but also, importantly for the community, maintaining an appropriately robust approach to serious offenders.

The DEPUTY PRESIDENT: If that concludes questions, I will now ask Ms Copsey to move her amendments. I remind everyone that if these amendments are successful Ms Symes’s and Mr Mulholland’s group 1 amendments will no longer be capable of being moved. Ms Copsey’s do test her group 1 proposal, so, Ms Copsey, if you move your amendments 1 and 2 on KC13C, please, they test all the remaining amendments on that sheet.

Katherine COPSEY: I move:

1. Clause 1, lines 8 to 10, omit all words and expressions on these lines and insert –

“(i) abolishing the 2 step tests; and”.

2. Clause 1, page 2, lines 1 and 2, omit all words and expressions on these lines and insert –

“(iii) changing the unacceptable risk test; and”.

Our bail laws are broken, as I outlined earlier this morning. Every day in Victoria people are being arrested and routinely denied bail, waiting in prison until their court date even though they pose no risk to the community. And if they are found guilty, it will often be for offences that either do not attract a prison sentence or for which the custodial sentence is shorter than the time they have already served, as we have canvassed in debate.

Please just take a moment to imagine that, colleagues, or imagine you have been found innocent in court but you have spent months in jail because you were denied bail. You will have almost certainly lost your job. Maintaining a mortgage or rent will have been next to impossible, and you may have lost custody of or contact with your kids. You have had a reduced ability to prepare for court while remanded. And of course, you were more unsafe in prison than you would have been on the outside, for many, many people.

We recognise that this bill will go some way towards redressing the current appalling situation in Victoria, and we thank the Attorney for the work that has gone into addressing this situation. However, we do know the reforms put forward in the government’s bill fall short of what is actually required. The presumption of innocence – a cornerstone of our justice system – includes a presumption to bail. The reverse onus provisions which reverse this presumption of bail are deeply troubling, and this is why the Greens are putting this amendment. Put simply, our prisons are being used to detain persons who are legally presumed to be innocent and who will experience multiple disadvantages through their presentence incarceration. The provisions in the government’s bill will help solve some of these injustices but not all and not enough.

It is instructive here to know our history. For the first 20 years of the operation of the Bail Act 1977 after it was introduced, relatively few people actually were refused bail. Studies routinely found that between 90 to 97 per cent of people at that time were granted bail, and within Victoria Police at that time there was a cultural expectation that a person would be granted bail. Consequently the proportion of the prison population being held on remand at that time was relatively constrained. In 1998 it amounted to about 15 per cent of prisoners. Of course now, after the 2013 through 2018 bail law changes, the number of people on remand has nearly tripled, despite crime rates remaining relatively stable, and shifting the presumption of bail to a presumption against bail has driven a lot of that.

The presumption of innocence is a bedrock principle, and it differentiates countries and states that govern themselves by the rule of law from those that do not. Presumption of innocence does require a presumption towards bail, but in Victoria our Bail Act currently provides that there is a presumption against bail for people charged with schedule 1 or 2 offences. These people must prove why they should get bail. The failure of the government’s amendment bill to address the reverse onus provisions, which coroner Simon McGregor found are incompatible with the Charter of Human Rights and Responsibilities, is really a huge, missed opportunity in these reforms today. It is a disappointment to stakeholders that have been consistent and clear in their calls for these discriminatory tests – discriminatory in their effect – to be scrubbed from our bail laws. Ironically, there is a direct negative impact that the overuse of remand in Victoria is having on people’s lives and on community safety. The upheaval in the lives of those remanded means that housing, medical treatment, custody arrangements – all sorts of important supports – can be disrupted and upended, sometimes irrevocably.

In recent years the Court of Appeal of Victoria, the Victorian Law Reform Commission, the Law Institute of Victoria and the coroner in the inquest into the death of Veronica Nelson, as well as a range of other human rights experts and First Nations stakeholders, have specifically recommended that the reverse onus tests in the Bail Act should be abandoned. Bail decision making should be based on a single, simple test – unacceptable risk – and in doing so will not cause additional risk to the community. Having a single test will mean that a bail decision maker, assisted by appropriate risk-assessment information, will make that core decision as to whether releasing a person on bail constitutes an unacceptable risk to the community. Importantly, there is good evidence that bail decision makers can be confused by the complexity of the current system, and this can often lead to making the wrong decision.

Sadly, the government’s bill has ignored these key calls to address the structural issues throughout the Bail Act, and it remains complicated and confusing and creates a risk of errors being made. These Greens amendments 1 and 2, following legal stakeholder expert recommendations, come back to the first principle of one test that decision-makers need to apply to a person applying for bail: is there an unacceptable risk if that person is in the community while waiting for their court date? If yes, that person is denied bail. If not, that person is granted bail. I commend the amendment to achieve that.

The DEPUTY PRESIDENT: Before we go on, I would like to acknowledge federal member of Parliament from the Parliament of India the Honourable Chirag Paswan, who has been with us in the gallery.

David LIMBRICK: Whilst I have some sympathy for some areas of Ms Copsey’s amendments, I do have concerns about the incompatibility between these amendments and the government’s house amendments, and for those rather technical reasons I will be opposing this.

Evan MULHOLLAND: We will not be supporting the Greens amendments, for similar reasons to Mr Limbrick’s.

Jaclyn SYMES: Ms Copsey, it is clunky for you because all your amendments were in one go. I have tried to address a bit of it in the summing-up, but I think we teased out a bit of it through the committee.

I do take issue with your characterisation that we have ignored expert advice. I can tell you all too well in the position of Attorney-General that I can find a legal opinion that is competing on every single issue that I tried to progress. I understand that the experts you have spoken to all support a particular way, but it is incumbent upon me to have broader consultation and speak to people that have varying views on these laws. Therefore it is my responsibility to strike the right balance, and that is what we have sought to do here.

I did want to touch on your proposal to remove all reverse onus tests. We believe that there is a place for reverse onus tests when it comes to bail, but we do acknowledge that we have not got the balance right, which is why we are making changes. Your proposal would see this distinction removed in its entirety – one bail test across the board. I understand the intent and I understand the desire for simplicity, but we do not think that is an appropriate way to deal with bail. It is a simple approach, but unfortunately the circumstances of offending are not quite that simple.

That is why we have structured a system distinguishing low-risk and high-risk offences and correlating tests that match those. We think that is appropriate, but it is also consistent with every jurisdiction in the country. The only jurisdiction to ever have had one test was New South Wales, and they ended up having to reintroduce reverse onus tests within a matter of weeks because they found out that one test across the board simply does not work.

I think I have touched on your amendments in relation to reporting and data quite expansively. I think we have done quite a bit on the unacceptable risk test.

Katherine COPSEY: I want to clarify that I have moved amendments 1 and 2 and I was planning to move the remaining amendments at the clauses as we move through.

Jaclyn SYMES: Ms Copsey, I have been caught out on this before. If there is anything you want to say on any of your amendments, you need to do it now, because once this goes to a vote your others fall away.

Katherine COPSEY: I would appreciate that indulgence then, if that is all right. My apologies; I misunderstood your direction, Deputy President.

The DEPUTY PRESIDENT: They test your group 1 amendments on sheet KC13C. All the amendments on that sheet are tested by this question. You have more than one set of amendments. The amendments on KC13C are tested by these two amendments, which are the ones that abolish the two-step tests and change the unacceptable risk test.

Katherine COPSEY: Then I have remaining amendments on a separate sheet.

The DEPUTY PRESIDENT: But you will move those separately.

Katherine COPSEY: Yes, correct. Those relate to the reporting, the guiding principles and the review clause.

The DEPUTY PRESIDENT: Ms Copsey’s second set kick in between clauses 107 and 108.

Katherine COPSEY: That would be at clause 115. However, I may not proceed with that, depending.

Jaclyn SYMES: I think we have agreed that we have covered off the topics that are in Ms Copsey’s amendments 1 and 2 quite substantially. If it was not clear, we are not supporting those amendments.

Council divided on amendments:

Ayes (6): Katherine Copsey, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam

Noes (30): Matthew Bach, Ryan Batchelor, John Berger, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Enver Erdogan, Jacinta Ermacora, Michael Galea, Renee Heath, Ann-Marie Hermans, Shaun Leane, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nicholas McGowan, Tom McIntosh, Evan Mulholland, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell, Sheena Watt

Amendments negatived.

The DEPUTY PRESIDENT: I invite the Attorney-General to move her amendment 1, which tests her amendments 4 to 45 and 47, on sheet JS28C.

Jaclyn SYMES: I would like to formally move my amendments, which I have spoken to on a number of occasions in relation to the government’s rationale for keeping the status quo for children, taking out the changes for child bail in relation to the Bail Act and moving them to the youth justice bill which will come back to the Parliament shortly. I think we might have some questions on it. I ‍move:

1. Clause 1, page 2, lines 1 and 2, omit all words and expressions on these lines.

Evan MULHOLLAND: We certainly will support this group of amendments. The opposition appreciate the constructive way in which the government has worked on this bill and has recognised concerns raised by the opposition and the community. While we still have remaining concerns, weakening bail laws for youth offenders was always a dangerous move by Labor given the shocking youth crime incidents we have seen in recent times, so we are pleased the government has now reconsidered these proposals. That is a welcome backflip and an opportunity to finally start listening to the community on this.

I will note that the Leader of the Greens said that it was a deal between the opposition and the government. I do not think I am giving away much by saying that we have never said that we were going to oppose this bill, regardless of some elements that we did not like. We simply put forward some very sensible suggestions that the government has happened to take up. I would like to congratulate the Attorney for listening but also congratulate my friend and colleague Michael O’Brien for consulting with stakeholders and putting forward some sensible suggestions.

Katherine COPSEY: If I may ask a question in relation to this amendment, please: Attorney, given based on these house amendments there is a backtrack – or, in your words, just hitting a pause – on your commitment to a presumption of bail for children and you have given an assurance that these provisions will be introduced in the youth justice bill, can you give any more precise timing on that bill? I have heard variously ‘the start of next year’ or ‘early next year’. When do you plan to bring that to this chamber?

Jaclyn SYMES: I reckon ‘the start of next year’ and ‘early next year’ are interchangeable. This is a suite of reforms that are well progressed. Much of it falls in my ministerial colleague Minister Erdogan’s remit of youth justice. But it is the vessel for raising the age, and we have committed to introducing that early next year. We are just shifting this into that piece of legislation. I think most people would have heard me say it, but it will give us a good opportunity to have a real conversation isolated to young offenders, their particular vulnerabilities and the particular needs of that cohort. We think that that is a sensible decision.

I do reiterate that custom and practice and the reality of what is happening is that the unacceptable risk is what is applying to children right now. I have spoken to stakeholders who I was worried would be concerned about this pause, and they were saying, ‘We don’t actually have any instances of where we think that this is causing any harm, and we haven’t for some time.’ That is because of the applications of the courts and how they are applying the tests now in recognising that children meet the reverse onus test pretty much automatically, and they go straight to the unacceptable risk test. So the pause will not cause any harm to children, in our mind, based on the feedback that we are getting from the people that work in the system, but we know and you can hear from the comments of Mr Mulholland that there are perceptions of a concern.

I do not want to create an unnecessary debate that will not actually bring about any material benefit right now because there is nothing that we need to fix in that regard. When we can bring it to the Parliament and have a broader discussion about what we are doing to tackle youth crime, how we are supporting those children, how we are supporting their families – diversion, court conferencing and a range of measures – that will be a really good bill and a good opportunity not only for a community conversation and a greater understanding of youth crime and how you deal with that but also for the Parliament to have a really, hopefully, respectful and mature conversation about it at that time.

David LIMBRICK: The Libertarian Party will be supporting the government’s amendments here. I would like to say I see it as a positive sign that the government can say that maybe they have not got it quite right and they want to take a bit more time to get it right. I have said many times that I would rather see this done right than rushed through, and if the government feels that they have not got it quite right and want to take a bit more time to introduce this next year, I am supportive of it. In fact I would like to see the government do that more often maybe rather than just push things through. So I will be supporting this.

Katherine COPSEY: Attorney, thank you for your answer previously. Can I have your assurance that these provisions relating to children will not be further weakened when the youth justice bill is introduced – that they will return as they have been drafted?

Jaclyn SYMES: Ms Copsey, it is my intention to have the existing reforms just moved to another bill. In all honesty, they were actually originally going in the youth justice bill. I brought them forward and now I am moving them back. They sit better right now in a conversation that can be holistic.

Katherine COPSEY: The Victorian Greens will not be supporting this house amendment. It is another missed opportunity on top of the missed opportunities that we have already seen in this partial reform to our bail laws. We hold concerns that children will continue to be unnecessarily exposed to the criminal justice system by way of further delaying these. I hope that the Attorney-General is correct; we share the hope that we will not see children having further contact with the criminal justice system as a result of this deferral. I must say though, if there is no practical consequence that you are concerned about, then I do not see why we could not have proceeded with this today. It is a really weak decision not to proceed with these laws. The Greens hope that we can see this expedited as part of the youth justice bill early next year.

Council divided on amendment:

Ayes (30): Matthew Bach, Ryan Batchelor, John Berger, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Enver Erdogan, Jacinta Ermacora, Michael Galea, Renee Heath, Ann-Marie Hermans, Shaun Leane, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nicholas McGowan, Tom McIntosh, Evan Mulholland, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell, Sheena Watt

Noes (6): Katherine Copsey, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam

Amendment agreed to.

The DEPUTY PRESIDENT: We are still on clause 1 and still dealing with amendments to clause 1. Mr Mulholland, I invite you to move your amendment 1 on your sheet EM01C, which tests all the remaining amendments on that sheet.

Evan MULHOLLAND: I move:

1. Clause 1, page 2, lines 13 and 14, omit all words and expressions on these lines.

As discussed earlier on, we do have some concerns. Accused offenders who abuse bail by committing further offences should face a higher test to get bail. This is what the current laws do. In the case of an adult, it means that the bail test is automatically increased, usually to show a compelling reason test plus then the unacceptable risk test. Our amendment aims to retain this feature of the existing bail laws as discussed earlier. Clause 36 does allow a bail decision maker to take into account whether an offence is likely to receive a prison sentence, so it is a sensible amendment and I urge the house to retain this feature of our existing bail laws.

David LIMBRICK: The Libertarian Party will not be supporting this amendment. I do not believe that this double uplift will help reduce the number of people on remand. Also, I note that removing this particular thing was a recommendation of the coroner in the Veronica Nelson case. Therefore I will be opposing it.

Katherine COPSEY: I confirm the Victorian Greens will not be supporting this amendment. This takes an act that is having negative and deleterious consequences for vulnerable Victorians and makes it worse.

Jaclyn SYMES: The government will not be supporting this amendment. Repealing of this offence is vital to ensuring that the bill can effectively address the issues that have been identified in the bail system. The proposed amendment would undermine a core purpose of the bill, which is to address the harsh and disproportionate impact that existing bail laws are having on vulnerable people and those charged with lower level offences. If we retain the offence of committing an indictable offence on bail and continue to uplift it to a tougher bail test, then we will continue to see people charged with several small thefts on bail being uplifted to the same bail tests as alleged rapists or murderers. This will continue to particularly impact on women, children, Aboriginal people and the most vulnerable of Victorians.

Council divided on amendment:

Ayes (15): Matthew Bach, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nicholas McGowan, Evan Mulholland, Rikkie-Lee Tyrrell

Noes (21): Ryan Batchelor, John Berger, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, Michael Galea, Shaun Leane, David Limbrick, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Amendment negatived.

Jaclyn SYMES: I move:

2. Clause 1, page 2, line 26, omit “bail.” and insert “bail; and”.

3. Clause 1, page 2, after line 26 insert –

“(e) to require a review of the operation of the amendments made by this Act.”.

This is about the statutory review, which we have discussed and so moved.

Evan MULHOLLAND: This is a good amendment, and the opposition will be supporting it. It was a great suggestion, I think, quite early on by the Shadow Attorney-General Michael O’Brien, and I am very pleased the government has taken that on board.

David LIMBRICK: The Libertarian Party will also be supporting this amendment.

Katherine COPSEY: The Victorian Greens will be supporting this amendment. Another amendment under my name today would have also proposed a 12-month review with four-yearly reviews thereafter.

Just to make a few comments on the need for review, which the Attorney has touched on today, when the 2018 bail reforms were passed there was no statutory mechanism for legislative review, contrary to the consistent calls of stakeholders. The consequence of that was that we had immediately clear evidence of the disproportionate impacts and the skyrocketing remand rates from 2018 that have continued until now. However, the government did not acknowledge those publicly and refused to act until the inquest into Veronica Nelson’s death revealed Veronica’s horrific experience with the bail system. So the Greens’ amendment would have been for a required review within 12 months, because we think it is sensible to have the review and for that to be happening quite immediately so that we do not run into that situation again. We do welcome the house amendments today that put a two-year review in place. It is not what we would have preferred.

Specifically, in addition to the points that the government has raised, the Greens’ amendment would have put in place a review that considered specifically whether vulnerable persons such as women, children, people with disabilities, Aboriginal persons and Torres Strait Islanders were being adversely affected as a consequence of the amendments made by this bill today, given those other categories that have already been most adversely affected. The review would have also considered the impact of the reforms on key elements such as (1) recidivism, (2) the rate at which offences are committed, (3) the safety of the community and (4) sentencing. There is a lot of talking and opinions in the house across the chamber about bail and these elements, so why would we not have an expert panel review and report on the factual situation once these laws are operating? That would have been the effect of the Greens’ amendment.

I will just say that this is an example of this house, this chamber, at its best, where we have had several parties in the chamber today express that without a review clause this law would not have passed, and I commend the government for listening to that feedback and taking it on. It is an example of us coming to a conclusion that improves the law, and that is entirely our function.

Amendments agreed to; amended clause agreed to; clauses 2 to 5 agreed to.

Clause 6 (17:25)

Jaclyn SYMES: I move:

4. Clause 6, lines 21 and 22, omit “4AA or 4AAB,” and insert “4AA,”.

This is effectively a consequential amendment.

Amendment agreed to; amended clause agreed to; clause 7 agreed to.

Clause 8(17:26)

Jaclyn SYMES: I move:

5. Clause 8, lines 6 to 14, omit all words and expressions on these lines.

6. Clause 8, line 15, omit “(2)”.

Amendments agreed to; amended clause agreed to; clauses 9 to 12 agreed to.

Clause 13 (17:27)

Jaclyn SYMES: I move:

7. Clause 13, lines 20 and 21, omit “whichever of section 4AA or 4AAB applies,” and insert “section 4AA,”.

This is a further consequential amendment.

Amendment agreed to; amended clause agreed to.

Clause 14 (17:27)

Rachel PAYNE: My question goes to the application of the revised unacceptable risk test. Historically our courts on many occasions have required an accused person to have a fixed residential address in order to obtain a grant of bail – seemingly a prerequisite. With the narrowing of the unacceptable risk test, my question is: if the risk of endangering the safety or welfare of any person can be ameliorated by other means, should the absence of a fixed address be a barrier to bail being granted?

Jaclyn SYMES: It is a really important question that you raise and something that we have given some thought to, and we have certainly had consultation with the courts in relation to how this is operating. It is not the practice of bail decision makers to remand someone on the sole basis that they do not have a fixed address, and we believe that that is right – nor should it be. I have raised this issue several times with the courts to see how it works in practice, and what they have said is that from a practical perspective they will explore further options that can ameliorate the risk this might carry – for example, a bail decision maker might consider how bail conditions such as reporting could work, such as making it so that they report to a specific police station to confirm that they are still in the area every week or so as a bit of a workaround. They can also impose a condition referring the person to community supports and programs to address immediate or ongoing housing needs, and the court integrated services program, known as CISP, can provide assistance with linking accommodation services as well. I do want to flag that in relation to a determination of bail in relation to a child, the Bail Act states that bail must not be refused to a child on the sole ground that the child does not have any or any adequate accommodation. This is a more complicated factor in relation to adult applicants, and there is a balancing exercise with making sure people are not unnecessarily remanded and making sure that we can ensure that they front up to court when their matter is heard and they can be contacted in relation to those matters et cetera. But I do want to make the record clear that it is not my expectation that someone would be denied bail solely on the grounds that they do not have a fixed address.

Clause agreed to; clause 15 agreed to.

Heading to division 4 of part 2 (17:30)

Jaclyn SYMES: I move:

8. Division heading preceding clause 16, omit “Bail tests that apply to children” and insert “Notes to heading to Schedule 1”.

Amendment agreed to.

Clauses 16 to 23 (17:30)

The DEPUTY PRESIDENT: The Attorney-General’s amendments 9 to 16 seek to omit clauses 16 to 23 from the bill. Unless members have questions on any of these clauses, I propose to put them to the committee as a group. We will ask that these clauses stand part of the bill. If you are voting in favour of what the Attorney wants, which is to omit them from the bill, you vote no.

Clauses negatived.

Clause 24 (17:32)

Jaclyn SYMES: I move:

17. Clause 24, line 24, omit “an adult” and insert “a person”.

18. Clause 24, lines 27 to 29, omit all words and expressions on these lines.

19. Clause 24, line 30, omit “3” and insert “2”.

20. Clause 24, line 31, omit “See –” and insert ‘See section 4AA(2).”.’.

21. Clause 24, lines 32 and 33, omit all words and expressions on these lines.

These are a continuation of the consequential amendments in relation to child bail.

Amendments agreed to; amended clause agreed to.

Clause 25 (17:32)

Jaclyn SYMES: I move:

22. Clause 25, line 6, omit “adult” and insert “accused”.

23. Clause 25, line 9, omit “adult” and insert “accused”.

Amendments agreed to; amended clause agreed to.

Clause 26 (17:33)

Jaclyn SYMES: I move:

24. Clause 26, line 25, omit “adult” and insert “accused”.

25. Clause 26, line 28, omit “person” and insert “accused”.

26. Clause 26, page 16, line 3, omit “adult” and insert “accused”.

27. Clause 26, page 16, line 6, omit “person” and insert “accused”.

Amendments agreed to; amended clause agreed to; clauses 27 to 29 agreed to.

Clause 30 (17:33)

Jaclyn SYMES: I move:

28. Clause 30, page 18, Flow Chart 1, omit “Flow Chart 4” and insert “Flow Chart 3”.

29. Clause 30, page 18, Flow Chart 1, omit “Flow Chart 5” and insert “Flow Chart 4”.

30. Clause 30, page 19, line 3, omit “an adult” and insert “a person”.

31. Clause 30, page 19, heading to Flow Chart 2, omit “to adults”.

32. Clause 30, page 19, Flow Chart 2, omit “Flow Chart 4” (wherever occurring) and insert “Flow Chart 3”.

33. Clause 30, page 19, Flow Chart 2, omit “Flow Chart 5” and insert “Flow Chart 4”.

34. Clause 30, page 19, Flow Chart 2, omit “Flow Chart 6” (wherever occurring) and insert “Flow Chart 5”.

35. Clause 30, page 20, lines 1 to 4, omit all words and expressions on these lines.

36. Clause 30, page 20, Flow Chart 3, omit this flow chart.

37. Clause 30, page 21, line 1, omit “(5)” and insert “(4)”.

38. Clause 30, page 21, line 1, omit “4” and insert “3”.

39. Clause 30, page 21, heading to Flow Chart 4, omit “4” and insert “3”.

40. Clause 30, page 22, line 1, omit “(6)” and insert “(5)”.

41. Clause 30, page 22, line 1, omit “5” and insert “4”.

42. Clause 30, page 22, heading to Flow Chart 5, omit “5” and insert “4”.

43. Clause 30, page 23, line 1, omit “(7)” and insert “(6)”.

44. Clause 30, page 23, line 1, omit “6” and insert “5”.

45. Clause 30, page 23, heading to Flow Chart 6, omit “6” and insert “5”.

Amendments agreed to; amended clause agreed to; clauses 31 to 107 agreed to.

New clause (17:34)

Katherine COPSEY: I move:

1. Insert the following New Division after Division 3 of Part 5 –

‘Division 3A – Annual reports

107A New Part 4A inserted

After Part 4 of the Principal Act insert –

“Part 4A – Annual reports

18B Annual report of Chief Commissioner to contain information on bail decisions

(1) The Chief Commissioner, in the Chief Commissioner’s report of operations under Part 7 of the Financial Management Act 1994, must include the information set out in subsection (2) in respect of –

(a) the financial year to which the report relates; and

(b) each of the following categories of accused person –

(i) children;

(ii) adults;

(iii) men;

(iv) women;

(v) persons identified as vulnerable adults;

(vi) persons identified as Aboriginal persons.

(2) For the purposes of subsection (1) the information is –

(a) for each category of accused person, the total number of decisions by police officers about granting bail to the accused persons in that category; and

(b) the total number of those bail decisions where bail has been granted; and

(c) the total number of those bail decisions where bail has been refused; and

(d) for each of those bail decisions, the police station where the decision was made.

18C Annual report of Court Services Victoria to contain information on bail decisions

(1) Court Services Victoria (within the meaning of the Court Services Victoria Act 2014), in its report of operations under Part 7 of the Financial Management Act 1994, must include the information set out in subsection (2) in respect of –

(a) the financial year to which the report relates; and

(b) each of the following categories of accused persons –

(i) children;

(ii) adults;

(iii) men;

(iv) women;

(v) persons identified as vulnerable adults;

(vi) persons identified as Aboriginal persons.

(2) For the purposes of subsection (1) the information is –

(a) for each category of accused person, the total number of decisions about granting bail to the accused persons in that category made by each court that is a court to which the definition of jurisdiction in the Court Services Victoria Act 2014 applies; and

(b) the total number of those bail decisions where bail has been granted; and

(c) the total number of those bail decisions where bail has been refused; and

(d) for each of those bail decisions, the court, including the location of the court, in which the decision was made.

18D Annual report of Department of Justice and Community Safety to contain information on bail decisions

(1) The Minister responsible for the preparation of the report of operations of the Department of Justice and Community Safety under Part 7 of the Financial Management Act 1994, must include in that report the information set out in subsection (2) in respect of –

(a) the financial year to which the report relates; and

(b) each of the following categories of accused persons –

(i) children;

(ii) adults;

(iii) men;

(iv) women;

(v) persons identified as vulnerable adults;

(vi) persons identified as Aboriginal persons.

(2) For the purposes of subsection (1) the information is –

(a) for each category of accused person, the total number of decisions by bail justices about granting bail to the accused persons in that category; and

(b) the total number of those bail decisions where bail has been granted; and

(c) the total number of those bail decisions where bail has been refused; and

(d) for each of those bail decisions, the place where the decision was made.”.’.

The purpose of this amendment is to provide for detailed and disaggregated annual reporting. This was a recommendation in the coroner’s report into the death of Veronica Nelson. It is under section 4.13, and the recommendation is that all bail decision makers – courts, police and bail justices ‍– be required to regularly collect and regularly publish data on bail applications, bail outcomes and bail offences. Surely we all in this place want to ensure that policy and legislation are informed by the best data available. Once the legislation is in place we want to have access, as we have discussed during the committee stage, to reliable data to track the implementation of the changes.

An additional reason that we are seeking this amendment is that I do note that under goal 2.1 of the Victorian Aboriginal Justice Agreement the Andrews, now Allan, government committed to ensuring that Aboriginal people are not disproportionately worse off under its policies and legislation by researching the impact of the 2017 to 2018 bail reforms on Aboriginal accused.

What I have heard today is that there was no comprehensive piece of research undertaken by the government during that five-year period and that this bill has been developed in the absence of particular informed research on that topic. I really believe that strengthening the dataset could only improve decision-making by this Parliament into the future. I do recognise that improving reporting does require additional investment so as not to put additional burden on an already overstretched court and justice system, so should this amendment not be successful today, I do urge the government to still invest in systems to assist the courts, police and bail justices to record and report accurately on their bail decisions.

Jaclyn SYMES: We are not in a position to support Ms Copsey’s amendment today, not because we disagree with the intent but because of the unworkability of the amendment given the current systems. It would be unwise because it would not be able to meet the legislation if it was passed in that way. However, I have given a commitment to Ms Copsey that I share her view that data is an important component of ensuring the operation of these laws, and that will also be fed into the statutory review. I have given a commitment to ensure that as much public information as I can obtain will be made available.

Evan MULHOLLAND: The opposition will not be supporting this amendment.

Council divided on new clause:

Ayes (5): Katherine Copsey, Sarah Mansfield, Aiv Puglielli, Georgie Purcell, Samantha Ratnam

Noes (31): Matthew Bach, Ryan Batchelor, John Berger, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Enver Erdogan, Jacinta Ermacora, Michael Galea, Renee Heath, Ann-Marie Hermans, Shaun Leane, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nicholas McGowan, Tom McIntosh, Evan Mulholland, Rachel Payne, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell, Sheena Watt

New clause negatived.

Clauses 108 and 109 agreed to.

New clause (17:44)

Katherine COPSEY: I move:

2. Insert the following New Clause to follow the Division heading before clause 110 –

‘109A Guiding principles

After section 1B(1)(c) of the Principal Act insert –

“(ca) taking into account the established understanding of the negative effects of imprisonment on former prisoners, including an association with poorer social, economic and cultural outcomes and higher rates of subsequent offending; and

(cb) promoting bail decision making that is not discriminatory, particularly by regard being had to –

(i) the surrounding circumstances of vulnerable persons such as women, children, people with disabilities and Aboriginal persons; and

(ii) the disproportionate rates of imprisonment and deaths in custody of Aboriginal persons; and”.’.

This amendment from the Victorian Greens will create an amendment to the guiding principles of the act which will add to and complement what is already in those principles. The two core principles will be, firstly, that bail decision makers should take into account the established understanding of the negative effects of imprisonment and, secondly, to promote bail decision making that is not discriminatory, particularly with regard to Aboriginal and Torres Strait Islander people.

We note that the guiding principles section was an addition to this act in 2018, but given the recent finding that the act is resulting in discriminatory outcomes and the Attorney’s acknowledgement of this in her contribution recently to Yoorrook, the principles do surely need to be further amended to acknowledge and respond to these truths. We do need to call out the fact that these laws have the potential to directly discriminate against the most marginalised and disadvantaged. We must also call out that claiming community safety through the temporary incapacitation of a person on remand is false where such temporary incapacitation often leads to more frequent and more serious offending in the future – exactly the type of thing we are trying to avoid through a functional criminal justice system. Yoorrook is not only there to tell truth but for those truths to then inform and shape our decision-making going forward. This amendment seeks to incorporate that response into our updated Bail Act, and I hope that this amendment updating these guiding principles to acknowledge and respond to these truths will be supported.

Jaclyn SYMES: It is our view that our reforms acquit the substance of this amendment put by Ms Copsey. The reforms in the Bail Amendment Bill include particular provisions to assist bail decision makers to have regard to these issues. Bail decision makers are required to consider the surrounding circumstances of an accused person when making a determination, including any special vulnerability of the accused at section 3AAA(1)(h).We also have new section 3A and in particular section 3A(1)(a), which requires bail decision makers to consider the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population. In developing new section 3A we listened deeply to the feedback provided by Aboriginal communities, and as result of that engagement this is the wording that we landed on. We are of the view that it better reflects the experiences and circumstances of Aboriginal people, because this is what they told us. I am certainly not inclined to tinker with words that have been signed off by Aboriginal stakeholders in the spirit of self-determination.

Evan MULHOLLAND: The opposition will not be supporting this amendment.

Council divided on new clause:

Ayes (6): Katherine Copsey, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam

Noes (30): Matthew Bach, Ryan Batchelor, John Berger, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Enver Erdogan, Jacinta Ermacora, Michael Galea, Renee Heath, Ann-Marie Hermans, Shaun Leane, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nicholas McGowan, Tom McIntosh, Evan Mulholland, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell, Sheena Watt

New clause negatived.

Clauses 110 to 116 agreed to.

New clause (17:51)

Jaclyn SYMES: I move:

46. Insert the following New Clause to follow clause 116 –

‘116A New section 32C inserted

After section 32B of the Principal Act insert –

“32C Review of amendments made by Bail Amendment Act 2023

(1) The Attorney-General must cause a review to be conducted of the operation of the amendments made to this Act by the Bail Amendment Act 2023.

(2) The review must be commenced no later than 2 years after the commencement of the Bail Amendment Act 2023.

(3) The review must be completed no later than 6 months after it commences.

(4) The Attorney-General must cause a copy of the review to be laid before each House of the Parliament no later than 14 sitting days after receiving it.”.’.

This, for me, is consequential in relation to reviews.

New clause agreed to.

Clause 117 (17:51)

Jaclyn SYMES: I move:

47. Clause 117, line 11, omit all words and expressions on this line.

This is the final consequential amendment in relation to child bail.

Amendment agreed to; amended clause agreed to; clauses 118 to 120 agreed to.

Reported to house with amendments.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (17:52): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (17:53): I move:

That the bill be now read a third time.

Again, my utmost appreciation to everyone that has worked in relation to bail reform. For me this has been a journey that started on day one of becoming Attorney-General, and I have worked closely with a lot of people that have had very passionate views in relation to this. It was a very respectful debate today. I thank all colleagues in relation to that. We have made a big difference today to a lot of lives, a lot of vulnerable lives, in Victoria. I thank everyone for their cooperation.

The PRESIDENT: The question is:

That the bill be now read a third time and do pass.

Council divided on question:

Ayes (33): Matthew Bach, Ryan Batchelor, John Berger, Gaelle Broad, Katherine Copsey, Georgie Crozier, David Davis, Enver Erdogan, Jacinta Ermacora, Michael Galea, Renee Heath, Ann-Marie Hermans, Shaun Leane, David Limbrick, Wendy Lovell, Trung Luu, Sarah Mansfield, Bev McArthur, Joe McCracken, Nicholas McGowan, Tom McIntosh, Evan Mulholland, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (3): Jeff Bourman, Moira Deeming, Rikkie-Lee Tyrrell

Question agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.28, a message will be sent to the Assembly that the Council have agreed to the bill with amendments.