Tuesday, 26 August 2025

Bail Further Amendment Bill 2025

Second reading

Debate resumed on motion of Lizzie Blandthorn:

That the bill be now read a second time.

And Katherine Copsey’s amendment:

That all the words after ‘That’ be omitted and replaced with ‘the bill be withdrawn and not reintroduced until the government commits to changes to the bill so that it:

1. does not exacerbate the risk of human rights abuses; and

2. does not result in disproportionate incarceration of vulnerable groups, including women and First Nations peoples, leading to deaths in custody.’

David ETTERSHANK (Western Metropolitan) (21:11): I rise to speak on the Bail Further Amendment Bill 2025, and I would like to start out by echoing the comments of my colleague Rachel Payne that everyone has a right to feel safe in their homes or in the streets. This is a very live issue in my electorate. A recent survey by the RACV and Neighbourhood Watch focused on how safe people feel in their homes. People in Western Metro recorded the state’s lowest safety rating. They are concerned about home invasions and carjackings, as residents have been increasingly subjected to these terrifying crimes. So we are in no way discounting those people’s concerns or dismissing their fears. They are entirely legitimate, and I am sure that sentiment is shared by all my colleagues in the Legislative Council. Where there is not such unanimity is how as a society we respond to these crimes and these perfectly reasonable concerns. In our view, and that of a wide cross-section of the legal fraternity, the police, community leaders and community workers, these new laws, the Bail Amendment (Tough Bail) Bill 2025 and the one before today, are reactionary responses to complex issues which will push more young people through the revolving door of disadvantage and incarceration.

The government claims its first tranche of reforms are working. The Premier stated:

… the changes we made earlier this year … are already working. The number of bail revocations and people on remand has increased.

If the goal were to simply lock up more people, then you could say that those laws are working. However, if they are supposed to reduce crime and make our communities safer, then we have to say, as I think most of the community would say, they are not working at all. The Premier went on to say:

… we’re … bringing more prison beds online.

… almost 1,000 additional adult prison beds will open … and a further 88 beds will open at Cherry Creek and Parkville youth justice facilities.

I find the Premier’s enthusiasm for bringing more prison beds online quite depressing and, frankly, deeply frustrating, because evidence shows us that jailing young people does not decrease crime or enhance community safety. We are not the only state in Australia to go down the ‘lock ’em up’ tough-on-crime route instead of addressing the underlying factors that see young people ending up in the criminal justice system. The Northern Territory government is very big on jailing young people – very, very tough on crime. Indeed, if the Northern Territory were a country, it would have the second highest incarceration rate in the world, second only to El Salvador and well above Russia, China or the US, and surely no-one wants to be at the top of that particular ladder. The NT recently amended its youth justice laws to remove detention as a last resort for children, despite overwhelming evidence that it inflicts profound harm on children and inevitably sets them up for reoffending. But with all those bad kids in jail it must be the safest place in Australia. Well, sadly, no. There is no evidence that putting more people in jail reduces the crime rate or makes the community safer, and the Northern Territory is a case in hand.

In New South Wales we have more proof of the failure of detention to create safer communities. In 2024 the Minns government – in another example of headline-grabbing, tough-on-crime posturing trumping evidence-based policy – introduced its own reforms to its Bail Act 2013. Warned that it would increase prison populations – namely, with more vulnerable children, who are already over-represented in the justice system – and do nothing to prevent crime, New South Wales passed legislation which made it harder for children to get bail than adults. A year later the results are in: youth detention rates have increased by 34 per cent in just two years, with nearly 60 per cent being Aboriginal. Do the good burghers of Sydney feel any safer as a result? Of course not.

Every jurisdiction that has adopted tough on crime bail laws for children has seen higher rates of children detained and higher rates of reoffending, with no improvement in community safety. If people are not moved by the trauma inflicted by these policies on vulnerable, over-represented communities, maybe the very high price tag will bring a tear to their eyes. We know that young people who end up in the criminal justice system are far more likely to experience greater levels of poverty, social and economic exclusion, family violence and housing insecurity. Of course people need to be held accountable for their actions, including children. It is not about minimising crime or its impact, but we cannot keep funnelling young people through the justice system only to spit them out into the same cycle of disadvantage that led to their offending in the first place and that will most certainly lead to reoffending. We need community-led solutions for the things that actually do build community safety.

One thing that does help and is certainly a damn sight cheaper than locking kids up is keeping them in school. I have seen this figure so many times, and it never ceases to blow my mind: it costs $7500 a day to keep a child in detention and $6000 a year to have them in school. I have spoken before about Target Zero, a program aimed at ending the criminalisation of vulnerable young people in Brimbank, Melton and Wyndham and reducing their over-representation in the criminal justice system to zero. Project 100 runs concurrently with Target Zero, with the goal of 100 per cent year 12 completion, and there is no doubt that there is a correlation between these two percentages. Foundational supports that address the drivers of crime lead to greater community safety and a reduction in crime. Better supports for schooling, drug and alcohol dependency, mental health, family violence, and homelessness – alas, we never seem to find the money, but it is blindingly obvious that these are better and cheaper alternatives to building and staffing jails – $7500 a day to detain a young person, $6000 a year to educate them.

Another cost-effective way to reduce crime in my electorate is to fund the Wyndham Law Courts precinct for its full suite of therapeutic court lists. It will be to the detriment of the whole community if Wyndham opens without them. The government committed to a range of therapeutic courts, including a drug court and a Koori court, in the 2021 budget, but it is unclear whether these specialist courts will ever be resourced, despite being cheaper to run than mainstream courts and effective in reducing recidivism.

It is profoundly depressing that these amendments will pass and become law, but at least we knew that we were in for it this time around – it is no less disappointing, however. These new measures will not make the community one jot safer. To quote that most eloquent of American baseball players Yogi Berra, ‘Oh no, it’s deja vu all over again.’ I like the irony of that quote given this legislation introduces a second-strike rule, a whimsical coincidence in this discussion but a tragedy for the marginalised communities who will be traumatised by that rule and the consequent uplift provisions. We need to stop seeing this as a binary issue – tougher policing and harsh justice versus therapeutic and restorative measures.

For all the shrill headlines about youth crime wave epidemics, we are talking about maybe a couple of hundred kids who are recidivists and who are generally known to the police. I might add that I am very heartened by the fresh approach to policing that our new Chief Commissioner of Police is seeking to bring to the force. In the past we have seen police taskforces established to deal with these particular cohorts instead of passing sweeping laws that disproportionately impact upon a broad swathe of vulnerable people, but perhaps those sorts of solutions do not lend themselves readily to pithy, biting sound bites.

My colleague has circulated an amendment to include a sunset clause in the bill to review the high degree of probability test after three years, and we will support further amendments requiring additional safeguards for vulnerable and over-represented groups. We do not support the government’s bill. There are effective and proven ways to reduce crime and keep communities safe. The bill before us today contains none of these.

Enver ERDOGAN (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice) (21:20): I am pleased to rise to speak on the Bail Further Amendment Bill 2025. We have discussed this matter a number of times in this place, and I think this is a part of our government’s commitment to strengthening the bail laws so that we are tough on crime, because every Victorian deserves to not only be safe but feel safe. We as a government are also proud of our record of being tough on the causes of crime. If you read the second-reading speech by the Attorney-General, you will see that we are a government that is committed. I know my portfolio is on people’s ability to rehabilitate and successfully reintegrate through wraparound support when they end up in a custodial setting. We are also committed to preventing people from coming into contact with the justice system in the first place, and that is why we run programs from early childhood education through to education and through to TAFE, and also in health and mental health. We have programs across government that are all focused on keeping the community safer, because we know when we invest in people we have better outcomes and better communities and stronger, safer lives.

This bill today is a targeted bill that is focused on some of the worst types of offending – offending that the community is rightly outraged over. We see that with the targeted amendments to bail law. I do take issue with Mr McCracken’s comments. I do recall during his contribution he said that this was just Victoria getting up to speed with New South Wales. I take issue with that, because we would say that our bill is tougher than New South Wales because theirs is a temporary measure whereas ours is a permanent change to the Bail Act 1977. I would also say that their amendments only make changes to the way the high degree of probability test is applied to young people or children; our test applies to adults also. From that point of view I would say that our high degree of probability test is not the same as New South Wales – it is markedly different in that regard – but I am sure that will be debated through the committee stage, and that debate is important to have.

I know there have been a number of amendments circulated across the chamber in relation to this bill. I think the bail bill is about strengthening and targeting key parts of legislation that we said we would do earlier this year as part of our commitment to keeping the community safe. I do want to say this is about community safety from the criminal justice perspective, but for us as a government, safety is part of the whole-of-government effort. When we talk about gambling harm, when we talk about mental health and when we talk about investment in skills and training that is all about community safety as well, and that should never be forgotten.

This bill will introduce a tough new bail test and make it difficult for people who are out on bail and charged again with serious offences that we know are likely to be repeated on bail. I have seen it raised quite a few times during the debate, and again I want to thank everyone across this chamber for their thoughtful contributions. I did not agree with all of them, it would be fair to say, but they were thoughtful and there were different viewpoints – the kinds of viewpoints that I do see across the community. It was a good reflection of the different views in relation to justice settings. We do know that with issues such as aggravated burglary, robbery, home invasion, aggravated home invasion, carjacking and aggravated carjacking there seems to be a pattern where these are serious offences and there are repeat offenders, and that is the target. This is not a blanket bill, as the opposition would have us do. This is targeted at what we are seeing repeated, and it is evidence based.

This is one of the strictest bail tests in the country, and it sends a clear message: if you continue to pose a serious risk to the safety of Victorians, you are unlikely to get bail. The bill also introduces a second-strike rule. This means that those who allegedly commit indictable offences on bail are subject to a tougher bail test, where they must provide compelling reasons to justify bail. This new rule will be subject to carve-outs to ensure those charged with some low-level nonviolent offending are not remanded unnecessarily. I think that is important.

In bringing this bill today I can say the Attorney-General and Minister for Police did deliberate at length on getting these settings right and trying to strike that right balance. I know there has been a lot of commentary about the amount of times in this chamber we have had a chance to review bail settings, but I think that is a reflection of the complexity and the need to strike the balance in this area, because one way or the other, you can have quite dire consequences for people. That is what we are about: making sure all Victorians are safe.

The bill also outlaws monitoring of people on private bail. I think that is important. It is an issue that has obviously had a lot of public interest, and we are addressing that. These reforms are strong, they are necessary, but they are also proportionate. This is bail reform that prioritises community safety and ensures that the most serious and repeat offenders are held to account and not vulnerable individuals caught up by disadvantage. I know some of the discussion has been about the double-up provisions that have been in the past. It is not the same as that. This is very, very different and much more targeted. We are being tough on that repeat high-level offending. If you read the second-reading speech, you will see that the Attorney-General has considered all aspects of addressing the needs to address the causes of crime as well as the criminal behaviour. Here we are targeting those repeat serious offenders, that criminal behaviour and that criminal element that the community has really had enough of, which as a government we are seeking to address through these amendments to the Bail Act.

In that regard, I might just leave my contributions there, because I am expecting we will have a long and considered committee stage. Again I just want to thank everyone. I want to commend the bill. I hope that we can pass this bill without any amendments to the government’s legislation – to the Attorney-General’s legislation that she has brought here – because it is well considered and balanced.

Council divided on amendment:

Ayes (7): Katherine Copsey, David Ettershank, Anasina Gray-Barberio, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell

Noes (28): Ryan Batchelor, Melina Bath, John Berger, Lizzie Blandthorn, 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, Nick McGowan, Tom McIntosh, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell

Amendment negatived.

Motion agreed to.

Read second time.

The PRESIDENT: Before we go to committee, I have considered the amendments on sheet JMC03C circulated by Mr McCracken. In my view, amendments 1, 4, 5 and 6 are in contravention to the same question rule as they are the same in substance as amendments proposed to the then-titled Bail Amendment (Tough Bail) Bill 2025 and less than six months has lapsed since the house has considered that bill. Mr McCracken may seek leave for a motion to suspend standing orders to enable the offending amendments to be considered in the committee of the whole.

Joe McCRACKEN (Western Victoria) (21:34): I move, by leave:

That standing order 7.06 be suspended to the extent necessary to allow amendments 1, 4, 5 and 6 on sheet JMC03C to be considered during the committee of the whole.

Leave refused.

Committed.

Committee

Clause 1 (21:35)

Joe McCRACKEN: Minister, why is the commencement of this bill set to take place on 31 March 2026?

Enver ERDOGAN: I think it is clear in the bill that that is the default commencement, but there are powers to be able to bring it forward. I think it is about system readiness. We know these changes are quite significant. They are the toughest bail laws in the country, which will mean changing practice, in particular when it comes to law enforcement, changes in court systems and also making sure we can safely ramp up our corrections system.

Joe McCRACKEN: You said that could be the very latest. Does the government have an intent to do that earlier than 31 March 2026?

Enver ERDOGAN: I think it is a clear objective of the government to enact these provisions and bring them to fruition as early as possible. There may be elements that will be able to be brought forward, but in terms of the whole bill, obviously that option exists for 31 March 2026. In terms of some of these tests, if we can bring it forward, we will. That is our intention, when the system is ready to do so, in a safe way.

Joe McCRACKEN: You have brought this to this chamber as an urgent bill, yet the implementation at the very latest is going to be 31 March 2026. Would you concede that that seems a little bit at odds with the intent? You are saying it is urgent, but it is going to be delayed by implementation. Doesn’t that seem a bit strange?

Enver ERDOGAN: The last bill was urgent. This one is not urgent.

The DEPUTY PRESIDENT: Mr McCracken, the last bill was the urgent bill. This one has not gone through as an urgent bill. It is getting late, we understand. Do you have another question, or do you want to rephrase that question?

Joe McCRACKEN: I do. Thank you for correcting me there. Does the government have a date in mind when they want to see this bill implemented, earlier than 31 March 2026? I respect that the minister said they intend to do it as soon as possible. Is there some sort of date that you are aiming for?

Enver ERDOGAN: The legislation has 31 March 2026 as the default commencement, and that is quite clear. I do see the urgency in relation to this bill, although it is not an urgent bill – the last bill was. I think community safety is always a priority for government. We want to do it in the safest way possible, so it is always dependent on system readiness in terms of the courts, law enforcement and our corrections system. We will look, if possible, to bring elements of it forward, but clearly the whole package will be ready by 31 March 2026.

Joe McCRACKEN: I will move on. In the new section 4F, where a person commits a crime, the six crimes are armed robbery, aggravated burglary, home invasion, aggravated home invasion, carjacking or aggravated carjacking. The high degree of probability test will basically compel a bail decision maker to find the risk unacceptable unless the test is met. Why has the government decided that it only applies to those six crimes?

Enver ERDOGAN: I want to thank Mr McCracken for that question. I think it is a really good question. From the Attorney-General’s office and as a justice minister, we can see that they are offences that are inherently dangerous, all of them, and there is significant community concern, and it seems that there is a pattern: people that are bailed on those offences seem to reoffend with those offences. That is why we had to introduce this new high degree of probability test as part of the unacceptable risk test to ensure that the people who commit those six offences effectively face this new highest test, because they are the ones that the evidence shows are being repeated. We said that this was targeted at repeat high-level harm, and these seem to be the offences that the data shows are being repeatedly committed and are causing significant harm and concern in the community. Victorians are rightly outraged by some of these incidents we have seen. I noticed during their contributions many members talked about what they have heard and seen at local IGAs and what they have seen with a lot of the incidents at people’s homes. Victorians deserve to be safe, and that is why we have tried to target it at what we are seeing, and the response is this high new test for those six offences that are creating the greatest concern.

Joe McCRACKEN: So if a person is on bail, let us say, for carjacking but they then go out and commit dangerous driving, they would not be captured by the high degree of probability test – true?

Enver ERDOGAN: Yes.

Joe McCRACKEN: Wouldn’t it be fair to say, though, that dangerous driving is within the same sort of realm of dangerousness, community harm or risk as carjacking?

Enver ERDOGAN: With carjacking, especially because it involves a direct threat to a person, I understand that they are still subject to an unacceptable risk test. They would not be subject to the high degree of probability test, but they may be pushed up to the exceptional circumstances test, which is still a very high threshold to meet. But they would not be covered by the high degree of probability test, because the high degree of probability test is limited to those six offences.

Katherine COPSEY: Minister, how does the government reconcile the ethical and cognitive dissonance of moving forward with treaty, which recognises and affirms Aboriginal self-determination, in the same week as enacting these regressive bail laws that evidence shows, and experience has already shown from tranche 1, will disproportionately and negatively impact Aboriginal people?

Enver ERDOGAN: Ms Copsey, that is a very good question. As a government we have reaffirmed that we are proceeding with our treaty legislation, and it will be a historic moment this week when the Premier will get to speak in Parliament about our commitment and our acting on our commitment to be the first jurisdiction in the nation to have a treaty with its First Peoples. We are one of the few jurisdictions in the Commonwealth that does not have a treaty with our First Peoples, so I think that will be a very historic moment.

Right here in relation to what we are talking about, this is about alleged criminals and the bail setting as part of the broader network of the criminal justice system. We know that Aboriginal people are over-represented in the criminal justice system, and that is as a consequence of outcomes before people come in contact with the criminal justice system. In our government the Attorney-General has worked tirelessly to try and strike the right balance. These reforms are not easy. To avoid disproportionately impacting Aboriginal people we have included specific carve-outs to our uplift provisions to exempt offences at the lower level that are nonviolent and what we would say are all linked to crimes of poverty and disadvantage. It is a difficult balance, and I believe the Attorney-General has struck the right accord. But as one of the justice ministers – I am not resiling from that responsibility – I, the Minister for Police and the Attorney-General all do work collaboratively in partnership with the Aboriginal Justice Caucus and regularly attend Aboriginal justice forums where we do meet with the Aboriginal community. Some have expressed concern – significant concern – over this legislation. But at the same time you would understand the criminal justice setting is for all Victorians. We have tried to carve out where we can in terms of the considerations, and we have made sure to avoid a return to the unnecessary double uplift settings of 2018.

Katherine COPSEY: I just want to follow up a couple of things. You spoke about disadvantage leading to people having contact with the criminal justice system. That is certainly true, and we all acknowledge that. But another way that our criminal justice system continues to be racist in its operation is by enacting laws that we know from past experience will have a disproportionate impact on First Nations people. The government here is repeating mistakes of the past, so it is not fair to say that it is just disadvantage factors; the laws that you bring to this place and enact really have a huge impact on how many people get swept up and drawn into our criminal justice system. In relation to your comments around ongoing engagement with bodies like the Aboriginal Justice Caucus, they have been absolutely clear in their request to the government to not proceed with this tranche of bail laws. Why are you ignoring them?

Enver ERDOGAN: I think our government has a strong commitment to the Aboriginal justice agreement and working with Aboriginal partners in relation to criminal justice settings that do disproportionately affect Aboriginal people. I know the Attorney-General has worked tirelessly to provide carve-outs that recognise the disproportionate effect that we are trying to avoid. It is a fine line, but we will ensure that we do treat serious repeat offending with a gravity commensurate with the impact on the community and on victims as well. We understand that some of these high-level offences that we are focused on do have quite significant impacts on victims, and we have tried in the drafting of this legislation to mitigate those risks to Aboriginal people. So I do disagree with the premise of parts of your question. I think some of them were definitely valid, but for other parts I would disagree with the premise. We always continue to speak with Aboriginal partners; I would not say ‘stakeholders’. We are always speaking to them and getting feedback, and that is right. Part of that partnership means that at times we do disagree on where the settings should be, and this is clearly one of them. Law reform is difficult.

I know that the police minister and the Attorney-General attended the most recent justice forum. It is my plan to attend the Aboriginal Justice Forum in November, and obviously there will be some issues we agree with Aboriginal people on and our Aboriginal partners on, because we do work closely with them and we rely on them because we know we get better outcomes when we work with Aboriginal people. Sometimes on where some of the settings should be we do not necessarily agree, but we have tried to make changes that provide carve-outs that do not capture that kind of low-level crime that has been the biggest concern for getting people into custodial settings unnecessarily. But we are not returning back to 2018 settings; I just want to be clear on that.

Rachel PAYNE: Minister, the Victorian government’s allocation of $727 million to expand prison capacity also included 88 additional youth justice beds. This is compared to a 46 per cent reduction in funding for youth crime prevention programs. In 2023–24 it was $24 million; in 2024–25 it was reduced to $12.9 million. How does the government justify this shift towards a punitive approach over evidence-based early intervention, particularly when such measures may disproportionately impact over-represented cohorts and exacerbate long-term social harms?

Enver ERDOGAN: In my summation of the bill I said that we are a government that is being tough on crime and on alleged crime, in this case when it comes to bail, but we are also tough on the causes of crime. I would say that a lot of our investments might not just show up at the end of the criminal justice process, because we want to see people avoid the criminal justice process. It might not be shown in terms of youth justice or in adult correction systems, but a lot of those investments to prevent young people and people of all ages and all backgrounds making contact with criminal justice system are made across other service provisions that the state makes. That is why we invest in early childhood education. That is why we invest in primary and secondary education and obviously skills, training and TAFE. We are proud of that record, including for mental health and health, because it is all about ensuring that people have a protective factor so they avoid contact with the criminal justice system. It is not either-or. I feel like we need to do both, because when people have caused significant harm, they do need to be held to account for those actions. I always say corrections is at the end of that process, and we in corrections have an obligation to support people in their rehabilitation, because that will make us all safer into the long term. Again, I cannot agree with all aspects of your question. I think hopefully I have been able to answer some of it.

Joe McCRACKEN: I just want to return to the six crimes that we were talking about before in terms of the application of the high degree of probability test. What was the criteria the government established in choosing those six crimes?

Enver ERDOGAN: I think it is clear that the new high degree of probability test has been carefully calibrated to target repeat offending in relation to high-harm offences. This is evidence based. These six high-harm offences are more likely to be committed while on bail and involve randomly chosen victims, which the community is rightly concerned about. It is evidence based. We have looked at what is being repeated, and that is what we are seeing.

Joe McCRACKEN: Minister, with the greatest of respect, I am asking for what the criteria was. Did you have a criteria?

Enver ERDOGAN: I think when we set out to make reforms to bail we always said they were going to be targeted at high-level repeat offending. These six fit that criteria, and they are causing big community concern.

Joe McCRACKEN: We talked a little bit before about a carjacking incident and how if a person goes and commits dangerous driving that would not be captured in the test. Wouldn’t it make sense to group similar sorts of crimes? What I put to you is that if a person is out on bail having committed, let us say, carjacking, there is a propensity that they may commit a similar sort of offence; whether it is dangerous driving or whether it is theft of a car, they are similar sorts of crimes. I note that they are not exactly the same, but wouldn’t it make sense to group similar sorts of crimes like that because they are related? I put that to you: why are they not included?

Enver ERDOGAN: I think Mr McCracken has asked a really fair question. Carjacking is a more serious version, I guess, of a car theft. That is clear because it involves a person and is inherently riskier. So we have tried to group together what we call the riskier to the person offences that are repeated, and these are the six that we are seeing that are creating the greatest concern. I think the theft of a car, although it may be a similar offence, does not have the same level of risk and danger that these six provide, because they inherently interact with people. That is why we are focused on these six. I guess at some point you do need to draw a line with what you categorise for this. This test is a tough test, understanding that it will make it very tough for people to be granted bail. But I think they are considerations that bail decision makers will need to consider, because they are similar, not the same, and bail decision makers will still rely on the unacceptable risk to the community. With some of these, where it is a repeat offender, they may be elevated to the exceptional risk reverse onus test, which is quite tough as well. I think bail decision makers, on a case-by-case basis, will still have those tools. The high degree of probability in the example you gave would not apply, but there will still be tough tests for them to satisfy a bail decision maker, and we feel that is important to limit this targeted approach to these six.

Joe McCRACKEN: A lot of these situations, as you quite rightly say, Minister, do rely on circumstances. One could quite rightly argue that carjacking is incredibly risky, but that is not to say that dangerous driving is not equally as risky or sometimes even more risky. You do not just put the person who is driving the vehicle at risk; there are many other road users that could be at risk, and that could cause fatalities, but a carjacking may not cause a fatality. So again, the question is: the government includes carjacking as a repeat offence, but a similar sort of offence like dangerous driving is not included and is not captured by the test. Why?

Enver ERDOGAN: I think what we are seeing is that these are the offences that have been the most common kind of repeated offences, and it is about being proportionate. The circumstance that you gave is a really good one for a bail decision maker to make that assessment. There will still be a high test because it is repeated and it is dangerous. That is why a bail decision maker will be able to make a determination based on the high test but not necessarily the high degree of probability test, because these are very specific and targeted to these circumstances.

Joe McCRACKEN: Minister, you spoke about the high degree of confidence test in New South Wales. You are obviously aware of that test.

Enver ERDOGAN: Yes, I am.

Joe McCRACKEN: The high degree of confidence test from New South Wales, would it be fair to say that is reasonably similar in nature and operation to the one that is being proposed in the legislation here?

Enver ERDOGAN: Yes.

Joe McCRACKEN: Is there a difference at all, from your understanding?

Enver ERDOGAN: I did look at both pieces of legislation before today. I guess the way we have implemented it is as part of the unacceptable risk test. It is just the way our Bail Act 1977 is drafted and based on the best advice the Attorney-General had. The actual test that is being applied is the same test, but I say it is tougher because we do not have a sunset clause and we do not apply it only to children – it is also applied to adults. The New South Wales one initially was time limited – obviously they have extended it since – and its application was only to young people or children. Ours applies to adults as well as children, so we say our test is tougher.

Joe McCRACKEN: I would only contend that it is a tiny, tiny, little bit tougher, Minister, but you are the minister, not me. But it would be fair to say that the test – and I know many government members have said this as well – brings Victoria into line with New South Wales in terms of the robustness of the test. Would that be fair to say?

Enver ERDOGAN: Yes. The wording of the test, that is right. The wording of the test and the application will be up to bail decision makers, but we envisage that will be applied in a similar manner.

Joe McCRACKEN: The substance of the test is, as you say, Minister, pretty much the same as that of New South Wales. You are just saying the application of that test is applied more widely than the New South Wales test is, and that is how you make the claim it is tougher. Is that a correct understanding, from my point of view?

Enver ERDOGAN: Yes, it is tougher because it has a broader application. One is only applying to minors. This is applying to adults as well, so it is tougher by default – it impacts a greater amount of people. It also does not have a sunset clause; therefore it provides certainty going forward. It does not automatically disappear. It is there to stay.

Joe McCRACKEN: I will move on from that line of questioning. Thank you for confirming that it is the same robustness as New South Wales; it is greatly appreciated.

Business interrupted pursuant to standing orders.

Gayle TIERNEY: Pursuant to standing order 4.08, I declare the sitting to be extended by up to 1 hour.

Joe McCRACKEN: Clause 9 inserts new section 4AA(4A), which outlines new circumstances for the show compelling reason test, which includes indictable offences where somebody is on bail. Why doesn’t that include any summary offences?

Enver ERDOGAN: I think this is a reflection of community concern. Victorians are worried in particular about violence, and that is what we are trying to focus on here. We were very clear from the outset that we would not return to the unnecessarily harsh double uplift in the settings of 2018, so our approach is about being proportionate. Someone who commits an indictable offence on bail will only ever be subject to the compelling reasons test. So we think it is proportionate and fair. That is why we have gone to this.

Joe McCRACKEN: Offences contained in schedule 4 will not be subject to the show compelling reason test even though they are all indictable offences. Why is that the case?

Enver ERDOGAN: My answer will be similar to the answer to the previous question: that we were aiming at a proportionate response, and we felt that this was what was proportionate and fair in the circumstances and we did not want a double uplift, so therefore people will only be elevated to compelling reasons in these instances.

Joe McCRACKEN: Again, Minister, some of these crimes are associated with organised crime, such as dealing with the proceeds of crime, amongst others. Why does the government want to exempt those from the show compelling reason test when in actual effect they could have a larger risk for the community than some of the other indictable offences?

Enver ERDOGAN: I think if someone is involved in organised crime – say, drug-trafficking type offences – they would be captured, because they are quite violent crimes. But I think the goal here has been to take out nonviolent crimes, because we know that the community concern is greatest about violent crimes. Of course we are serious about taking on organised crime, and that is why we have got tough penalties, whether it comes to drug trafficking or in Victoria in particular some of the tobacco-trafficking offences we are seeing. But in particular we do have a carve-out for nonviolent offences because the community concern is greatest about violent offences, and that is where we have focused this legislation.

Joe McCRACKEN: I do not have too many more questions, so I will make sure this is good. My same question applies to the schedule 5 offences. Some include the theft of a motor vehicle. I know carjacking is included. It is quite possible that a person can be carjacked and their vehicle stolen, yet that is not applicable to the show compelling reason test. Why is that?

Enver ERDOGAN: Mr McCracken, I know that usually I am the person supposed to be answering the question, but I just wanted to seek your clarification, because schedule 5 is a carve-out with a threshold. Can you just clarify that question a bit more?

Joe McCRACKEN: It was the same thing that I was saying about schedule 4. They are not subject to the show compelling reason test. So basically, the theft of a motor vehicle is not subject to the show compelling reason test, even though, for example, you could have your car being carjacked and effectively you would have it stolen as well. Why is that not subject to the show compelling reason test? That is my question. Does that make sense?

Enver ERDOGAN: Obviously if it has been carjacked, then it would be covered by the uplifts in this legislation. But the lesser charge, when there was not a carjacking, of car theft – with a lot of these provisions it is about, with some of the exceptions to the uplift provisions in schedules 4 and 5, reducing the risk of remanding people unnecessarily. We have had to make a balance to make sure that the laws are proportionate and fair, and we have settled on the fact that some of the exceptions are required. If someone is committing a theft of a motor vehicle co-occurring with dangerous driving, then that is now part of schedule 2, so it depends what offence you are specifically talking about. But more broadly, some of the exceptions to schedules 4 and 5 are to reduce the risk of remanding people unnecessarily.

Joe McCRACKEN: I have two more questions. The specific crime that I am talking about is theft of a motor vehicle, which is contained in schedule 5. It is quite possible that someone gets carjacked, which is using violence, as we all know, to take possession of a car, and then that car is stolen as well. It could be dumped somewhere. But the person who was the original owner does not have ownership of it anymore. It is stolen. It is possible that those two things can happen. The question I was really getting to is: why isn’t the theft of a motor vehicle, which is the crime that I am talking about, not included in the show compelling reason test?

Enver ERDOGAN: I think it is a slightly confusing question. But what I will say is if someone is involved in the carjacking, then they will be obviously treated to a tougher test. Car theft is something that we have addressed as part of tranche 1, where it co-occurs with dangerous driving, so it depends on the circumstances of the car theft. Car theft with dangerous driving is treated as a schedule 2 offence and does get uplift. Car theft on its own, by itself, would not be subject to the uplift provisions. Let me seek further guidance, if it assists you.

I was just getting some clarity on the theft of a motor vehicle. I think it is clear that if you are out on bail and you commit a theft of a motor vehicle, then it is uplifted to compelling reasons. If you are not on bail and you commit the theft of a vehicle, unless it is co-committed with, say, dangerous driving, it is not uplifted. So it is not carved out, if you may say that. There are carve-outs, but some of those carve-outs are for theft under $2500, forgery, public nuisance. So there are other offences that are carved out, but theft of a motor vehicle is not carved out.

Joe McCRACKEN: My last question is a different topic, electronic monitoring. Who do the government have in mind as the prescribed entities that they envisage might undertake these monitoring activities?

Enver ERDOGAN: We do not have someone in mind at this moment, so to speak. But I think in future, if there were someone to come forward, then regulations I guess would be able to be put in place, if they met the criteria to be able to provide this service. But there is no-one specifically in mind.

Joe McCRACKEN: I am sorry to take longer than I need. I did not mean a specific business or something like that. I just mean: what is the nature of these prescribed entities? Are you trying to say private organisations outside of the remit of government? It is not agencies and those sorts of things, it is completely separate from government – that is what I am trying to get at.

Enver ERDOGAN: I think it is important to understand that in the landscape currently we do have this kind of electronic monitoring. We provide it for people. We have got people on parole, people complying with community corrections orders. But in terms of private electronic monitoring of bail, we are just making it permissible for regulations and later prescribed entities. We do not have plans to do that, but I guess some of them could be private companies. It could potentially be them that could qualify for it, yes. We do not have anything in mind at the moment, but if someone came across and said, ‘We want to do this,’ there may be a discussion to be had. But right now we do not have any plans to do any of that.

Georgie PURCELL: Minister, given that people with unidentified disabilities are even less likely to overcome barriers to bail and are not covered by consideration under section 3AAA, what safeguards will be included in the bill to ensure that bail decision makers have an obligation to inquire into potential disability so that appropriate decisions are made and supports provided?

Enver ERDOGAN: Thanks, Ms Purcell, for that really important question. In every bail application the bail decision maker must consider all relevant surrounding circumstances, and ‘surrounding circumstances’ includes but is not limited to the list of factors in 3AAA of the Bail Act, and that includes special vulnerability, such as a disability – physical or intellectual or cognitive impairment. But there are also non-legislative supports that exist in court settings, and I think that is important to understand. Duty lawyer services, such as provided by Victoria Legal Aid – and anyone that has gone to some of our suburban courts will have seen the important work that the VLA does. I want to give them a shout-out, because they do really important work on the front line. We have a court integrated services program, which can provide bail support, and we also have Forensicare, which can assist courts in identifying accused persons with mental illness. So there are existing supports, but you are right, at a certain stage there is a person that needs to highlight the issue.

Georgie PURCELL: The government is pushing ahead with bail reforms that will inevitably hit people with intellectual disabilities and acquired brain injuries the hardest. Corrections Victoria has found that more than four in 10 men and one in three women in prison have an ABI, compared with just one in 25 in the general community, and the Auditor-General has confirmed the department of justice still does not even know how many prisoners have these disabilities or what supports they actually need. What safeguards and resources will the government put in place to prevent the proposed bail reforms from further entrenching this disproportionate impact?

Enver ERDOGAN: We accept that factors such as intellectual disability and acquired brain injury do make an accused more vulnerable. Bail decision makers must already take into account any special vulnerability, including a disability such as a physical or intellectual disability or cognitive impairment. In addition, when a bail decision maker is considering granting bail or imposing bail conditions they also must consider any support services that can assist an accused to comply with their bail undertaking, such as services specifically supporting people with an intellectual disability or an acquired brain injury. Putting my corrections minister hat on, I will make the point that corrections does not get support from NDIS, so therefore in those settings it is obviously up to us to support. But in the custodial space we also have programs and services that seek to address the needs of people with cognitive disability in prison and prepare them for reintegration into the community. So there are safeguards and resources, but I do understand that it does make people specifically vulnerable.

Katherine COPSEY: Will the government be expanding the Koori Court to hear bail applications?

Enver ERDOGAN: Really good question, Ms Copsey. I do not have an announcement on this, but I know that the Attorney-General is obviously speaking with the Aboriginal Justice Caucus on this and it is something that she is working on.

Rachel PAYNE: Coroner McGregor noted in his findings on Veronica Nelson’s coronial inquest that:

Short periods in custody are destabilising and often serve to exacerbate issues underlying the person’s alleged offending by producing loss of housing, work or income, the breakdown of relationships and support networks, and disrupted access to treatment and other services.

These outcomes are contrary to rehabilitation and adversely affect the underlying social issues that drive offending. What is the evidence-based policy that the government has relied upon that supports incarceration as a more effective pathway for addressing the underlying causes of alleged offending?

Enver ERDOGAN: I think as a government we accept that remand or incarceration even for a short period can have a dramatic destabilising effect. In drafting this bill, as with the one in March, it was about the balance between competing interests here. We have the accused’s right to liberty against the very real threat posed by some high-harm and repeat offenders. That is what is really competing here, and obviously we have said for some of these offences a tougher test is appropriate. The balance is not easy to strike, because we do know that there is a big destabilising effect entering into custody. I think some of the carve-outs that the minister has put into this bill around pregnant women, for example, are good ones that are about addressing the destabilising effect that incarceration can have.

Georgie PURCELL: Evidence shows that time in prison does not address the underlying causes of a person’s alleged offending, which is often related to health issues, financial stresses and poverty, unstable housing and homelessness. The best way to curb offending and improve community safety is to invest in community-led support for people to address the underlying causes of their offending behaviour. What is the government doing to invest in these programs?

Enver ERDOGAN: I said in one of my earlier answers that we are a government that is proud of our record of being tough on some of the causes of crime and also supporting people with protective factors such as engagement in education. That is why we have invested in early childhood; that is why we have invested in primary and secondary schools. We are talking about protective factors. We are a government that is investing in people through TAFE and employment pathways and cheaper health care for families and support for school camps and excursions. Today we were talking about the $100 energy rebate to help with rising energy bills. But it is about being tough on the causes of crime as well. We do understand that they are disproportionately people from low socio-economic backgrounds – that is just factual – and disadvantage. The best outcome is for people to avoid contact with the criminal justice system, so I would say all the social supports we provide are in many regards prevention-of-crime measures. Obviously the criminal justice system is really the pointy end. It is usually when something has already gone horribly wrong.

Katherine COPSEY: The Yoorrook for Justice report made specific, detailed and reasonable recommendations, Minister, for amendments to the Bail Act, which would have reduced contact with the criminal legal system for Aboriginal people and protected Aboriginal lives from further deaths in custody. Minister, why is the government ignoring these recommendations and instead advancing these laws, which will make the state a far more dangerous place for Aboriginal people?

Enver ERDOGAN: I think the bill has been carefully designed to avoid the mistakes of the past, and that is why we do not have the double uplift that we saw in 2018, but we do acknowledge that the past bail system and the criminal justice system have had devastating consequences for Aboriginal people. That is why there are a number of elements that are about providing safeguards in the reform and carving out offences from our second-strike uplift, especially for nonviolent offences that are driven by poverty and disadvantage. Let us be clear: this is a tough bail test, especially with the high degree of probability test, but it is targeted to high-harm repeat offences and it is not to punish poverty or disadvantage or the Aboriginal community.

Rachel PAYNE: Minister, in 2010, section 3A was inserted into the Bail Act as a special measure under the charter to recognise historical disadvantage leading to the over-representation of Aboriginal people remanded in custody. Since when was defending the luxury items of people in certain suburbs more important to the government than correcting historical and systemic colonial injustices?

Enver ERDOGAN: Ms Payne, I disagree with that characterisation. I think everyone, irrespective of their socio-economic position, deserves the safety and protection of the law, and I think our government has proven that in our record for over 20 years. We have an Aboriginal justice agreement in Victoria – it was the first of its kind – and we are now going to the next iteration. It is all about making sure that we continue to invest in programs that do make a difference and making sure people do not come into contact with the criminal justice system in the first place. I think we have to be fair, but there is a balance here about the safety and the rights of victims of crime as well that we are trying to strike. I think the Attorney-General has done a great job in striking that balance by targeting the offences for the high test.

Georgie PURCELL: Australia has endorsed the United Nations Declaration on the Rights of Indigenous Peoples, and Victoria has an obligation under it to consult and cooperate in good faith with Aboriginal people to obtain their free, prior and informed consent before adopting laws and policies which will impact them. Why is the government ignoring Aboriginal people’s right to free, prior and informed consent in adopting this bill?

Enver ERDOGAN: The government always consults with stakeholders but also partners so that we can work on this law reform. It is difficult work. It is a challenge because, as I said, you have got competing interests here. I would say that we have had broad consultation, and sometimes some of our partners and we as a government do not necessarily agree on the best way forward, but I think the Attorney-General has tried to focus here on making sure we target the high-level repeat harm we are seeing in the community, because that is what Victorians expect. I disagree that we ignore Aboriginal people’s right to free and prior informed consent in this bill. It is difficult whenever you make changes like this, but they are really targeted and we are not trying to target disadvantage – we are trying to target the high level of harm and the high repeat level of harm being caused.

Katherine COPSEY: Statutory amendments to the Bail Act that were enacted in 2017 and 2018 following the Coghlan review were intended – it sounds so familiar now – to enhance community safety by making access to bail more difficult for violent offenders, but the changes made it more difficult for all people to access bail. What they in effect meant was that Aboriginal people, and particularly women, were disproportionately affected by those laws. Between 2015 and 2019 the number of unsentenced Aboriginal and Torres Strait Islander people held in Victorian prisons tripled. In that same period the imprisonment rate of Victorian Aboriginal and Torres Strait Islander adults doubled. What features of this current bill are designed to prevent this outcome from happening again?

Enver ERDOGAN: It is a really good question. I think what we had then obviously in 2018 was a double uplift, and we saw the horrific consequences of that. But I think also caring responsibilities and pregnancy being explicit added an important protective factor. As Minister for Corrections, I do also see the statistics, and we have already seen in the last two months an increase in the amount of Aboriginal people in custody. As a proportion of the Victorian population, Aboriginal people continue to be over-represented. I am not going to pretend that has not occurred – it has – but we have carefully tried to mitigate those risks through these carve-outs, with the existing mechanisms such as section 3AAA and the carve-outs for pregnancy and caring duties, and also to make sure these uplifts are not applied to lower level offending, repeat offending, which, as I said, has had tragic consequences in the past. We have tried to implement all those safeguards from the lessons learned from the past, but I am not going to pretend and say that we do not have a disproportionate over-representation of Aboriginal people in custodial settings, because we do. I am the Minister for Corrections.

Rachel PAYNE: Due to the increasing number of untried and unsentenced people in custody, the use of degrading practices like solitary confinement and routine lockdowns is widespread in Victorian prisons. I know I and many of my crossbench colleagues have raised this in this place before. Why then has the Attorney-General failed to assess the impact of this legislation on people’s rights to humane treatment when deprived of liberty and to protection from torture and cruel, inhumane and degrading treatment under the Victorian charter of human rights?

Enver ERDOGAN: I do reject the premise of this question. That is why we are taking the time to scale up accordingly in the safest possible way. From time to time there are lockdowns for the safety and security of staff but also those in custody and our service providers. But the majority of the additional funding is about ramping up in the safest possible way to make sure we have got staff in the right posts and the right services in place, and we need to be careful to get that right. We always try to keep lockdowns to a minimum. I know, for example, out-of-cell hours in Victoria are still above the national average. Of course we always aim to be better, so I am not disregarding that. I think these are operational decisions, and in implementing these laws I think the additional funding will assist us in making sure we have the most modern and effective system possible. The most humane system possible is also a goal of mine. Obviously at times we can do better, and we are aiming to always do better, but we are already above the national average when I compare us to any other jurisdiction. We have already made significant investments to make these custodial facilities as safe as possible, with new health providers and with the physical infrastructure as well, such as trauma-informed reception centres and healing units. But there is obviously more we can do. So I do reject the premise of your question. I think we are focused on trying to have the most modern, effective and humane system in the country.

Georgie PURCELL: Since implementation of the first tranche of bail reform in March this year, the number of adults on remand has surged by 22 per cent, while youth remand numbers have increased by 71 per cent. This surge has led to a 216 per cent rise in adult clients detained without conviction and a 300 per cent increase in youth clients in the same category. The rapid implementation of these reforms, without adequate consideration of their impact on the justice system’s capacity, risks further entrenching the cycle of incarceration and undermining efforts to address the root causes of crime. Why is the government rushing the commencement of these bail reforms when Victoria’s prisons are already overcrowded and increasing remand numbers will only worsen the crisis and put people in custody at even greater risk?

Enver ERDOGAN: The increase in young people on remand is not 71 per cent, it is 26 per cent, which is still a significant number in a short period of time. I reject the premise that our system is overcrowded. In fact the number of people in custody in Victoria is 20 per cent below what it was in March 2020, just over five and a half years ago. We have the lowest incarceration rate in the nation, so it is not overcrowded. But we do want to make sure that it is the most modern, effective and humane system, and that is why we are doing it the right way. We have made significant investments and changes and improvements over the years, and we want to build on that. Even with the upscaling, the additional funds that the Treasurer has supported us with will allow us to do that in the safest possible way in terms of making sure we have got the right people in the right posts across both our adult and youth justice systems, because we do actually have the physical beds but we want to make sure we open them up in the safest possible way. We definitely do not have the same challenges that we are seeing in other jurisdictions where they are effectively at 100 per cent capacity already.

Katherine COPSEY: Minister, it is really difficult to accept that answer given that since tranche 1 was introduced court data shows that remand numbers have risen exponentially. Prison and police custody cells are at their thresholds. Corrections Victoria has been at crisis point in terms of staffing shortages, which is contributing to the rolling lockdowns that we are seeing in our prisons. Introducing harsher bail laws, with respect, in these circumstances is just a recipe to contribute to another preventable death in custody. What is the government doing to rectify the shameful operation of forced solitary confinement that is resulting from these operational lockdowns? And I have some questions about the numbers of lockdowns that have happened since January 2025 across all Victorian prisons, if you have that available, please.

Enver ERDOGAN: I am just seeing if I have got that data with me – one moment. I do not have the data in relation to the amount of lockdowns since January 2025. I might need to take that on notice because I do not have that. I can give you the population of people in custody in terms of remand and people in custody, if that assists.

Katherine COPSEY: No, it is not what I asked for, Minister. It might come up in relation to one of our later questions. Thank you for taking that on notice. Minister, I would also like to know, in relation to lockdowns that have occurred since January 2025 across all Victorian prisons, for what length of time were those lockdowns taking place and the reason for the lockdowns from the beginning of this year.

Enver ERDOGAN: That is a good question. Some of that data would be difficult to pull out because it is still a very manual process, but I can seek to see what we have on hand to provide that.

Rachel PAYNE: Minister, the annual prison statistical profile, which was updated in August to include the 2023–24 financial year, shows that the overall rate of self-harm for the state’s prisons was 9.7 incidents per 100 prisoners, almost 10 incidents per 100 prisoners. Now that is up 32 per cent from 7.4 in 2016–17. Women and First Nations women in particular are vulnerable. The self-harm rate at the Dame Phyllis Frost Centre was the highest of any Victorian jail, reported at 54.5 self-harm incidents per 100 prisoners, shockingly double the rate of just two years earlier. Minister, acknowledging the duty of care that the state has towards those it holds in prison, do you accept this bill will increase pressure and make the problem worse?

Enver ERDOGAN: I thank Ms Payne for that question and the statistics about self-harm. I think the issue with relying on statistics is that there is always a large lag. Since those, there was obviously a lot of public interest. You would have seen the reporting and the response from Corrections Victoria. In fact the end-of-financial-year statistics for this year, which have coincided with an increase in lockdowns in our women’s system, show almost a halving of the self-harm incidents. Of course every self-harm incident is concerning, but I have been following it up today to get that data, because obviously it takes time for it to be published. But the most recent data over the last 12 months would show the halving, and I will see what I can share with you in relation to that. So in terms of the premise that self-harm incidents are increasing, it is actually quite the opposite over the last 12 months.

But all these self-harm incidents are very serious, and I think it is also a reflection of the cohort of women. Going to Ms Purcell’s question from earlier, a lot of people that enter into our system do have mental health issues and disabilities as well. I guess the concern in relation to when people come into a custodial facility is probably reflected there as well. The numbers are still high, although this year there is almost a 50 per cent decrease from the year that has been quoted and that was publicly reported, and I will see when that data becomes publicly available, because I was following that up. I do need to correct that. In particular in our women’s system there are challenges. Obviously with the new support we have in terms of additional funds, we are hiring new people, which means new squads are in training, and some of them will start in September at Dame Phyllis Frost.

Rachel PAYNE: Just on your response, you referred to how the rates for this year are actually at a 50 per cent reduction. What has changed that is now bringing those numbers down? You mentioned additional staffing, but considering access around service provisions and the like, can you just provide a bit more detail to that response, please?

Enver ERDOGAN: I will get more detail in relation to what they believe is underlying that. It is clear that 2023–24 was a bit of an outlier. It was a jump. It was a spike. It could also be the cohort of women that entered the system during that period. That actually coincided with record lower numbers in custody as well. It could also be the fact that you have got lower numbers and also a more complex cohort. We have had an increase in the number of women, but as a percentage, self-harm incidents have decreased. But I will try to tease that data out further, because I only got a hold of it today from the department.

Georgie PURCELL: The Youth Justice Act 2024 was passed last year after five long years of consultation with Aboriginal community controlled organisations and the legal sector. Why is the government making changes to bail laws now, including for children and young people, before Victoria’s new youth justice regime has even had a chance to begin operating and positively affect the trajectory of children involved in the youth justice system?

Enver ERDOGAN: I think the Youth Justice Act was transformative, and it has meant a different way for young people to interact with the criminal justice system, where we have embedded cautions, early intervention and diversion at an earlier stage to keep young people away from custodial settings where possible. But of course our justice package is focused on the high levels of harm being caused by some young offenders and offenders of all ages, and that is why we are implementing these bail law changes for the accused – I will make that clear as well, because people have the presumption of innocence at the bail stage – to match the high level of harm we are seeing. That is why, again, this bail law was targeted at the high-level repeat offences, and a lot of them are committed by young people, and it is causing great harm in the community and great concern as well. I think it is about balancing those interests. But the Youth Justice Act overall has been transformative in embedding that early intervention and that caution system to divert young people away at an earlier stage and also to have that comprehensive support. I have got to be careful here, because an issue that others have touched upon is that we are able to also ensure that young people get access to programs, even on remand, which are not necessarily available to adults in the correction system. So I guess the protective factors and supports available to young people are a lot greater than what are available to adults.

Katherine COPSEY: The statement of compatibility states that the high degree of probability test imposes no new limitations on people’s rights flowing from remand given the consequences of detention remain the same. But doesn’t that statement fail to acknowledge that this test is going to drastically increase the number of people remanded in custody and therefore expose more people to breaches of their right to liberty and their other human rights whilst in custody?

Enver ERDOGAN: The statement of compatibility does expressly recognise the right to liberty is further limited by this new test, because if they are repeat offenders in these type of offences, they are more likely to be remanded in custody. But the new test does not impact how people are treated while in custody, and it does not impose any new limitations on the rights impacted as a result of detention, such as the right to freedom of movement, the right to privacy and protection of families, but placing people in custody within the law can and is done in ways that can uphold people’s rights. This is fundamental to the operation of the criminal justice system. Remand has been a feature of the criminal justice system for many years, and the bill does not change that. It does impose a tougher test, that is clear, which will mean that some people will not be able to meet that tougher test and that will lead to their incarceration.

Katherine COPSEY: The statement of compatibility acknowledges that the high degree of probability test may limit the right to equality as well and disproportionately impact groups that are over-represented in the criminal legal system, and that includes children, Aboriginal people, people with disability and those who are pregnant or caregivers. But at the same time it states that provisions requiring consideration of individual circumstances under section 3AAA of the principal act, the surrounding circumstances section, and section 3A, Aboriginal considerations, and section 3B, child-specific considerations, may not be relevant to a bail determination and will only apply where they are relevant to the reoffending risk that the bail decision maker is considering. Given this, Minister, will the high degree of probability test result in automatic detention of people with vulnerabilities? And does this high degree of probability test effectively override Aboriginal people’s cultural rights and children’s rights to protection in their best interests? Why, with this test, is the government seeking to punish and put vulnerable people in prison?

Enver ERDOGAN: The new tests will not result in automatic detention. I think you have got to understand that the bail decision makers still have significant discretion. They have discretion also about what weight they apply in terms of the new tests, in terms of taking into account surrounding circumstances, including Aboriginality, being a child, experiencing ill health. Bail decision makers will still have the ability to kind of consider these factors, as in all cases. It is a tougher test – I do not deny that – but it is not automatic. On a case-by-case basis the bail decision maker will have that discretion to apply these surrounding circumstances and take into account all of them in informing their decision.

Katherine COPSEY: I really want to get clarity on the government’s intent in relation to this. Can you just confirm that it is the government’s intent that bail decision makers should still take into account all of those sections that I read out, the surrounding circumstances, Aboriginal considerations and child-specific considerations, even if we are in a circumstance where the high degree of probability test applies?

Enver ERDOGAN: In short, just for the record: yes, that is the intention.

Katherine COPSEY: What does the statement of compatibility refer to here when it says that those considerations may not be relevant to a bail determination where a bail decision maker is applying the high degree of probability test?

Enver ERDOGAN: The court of course, as I clarified in my answer to the previous question, retains the discretion to consider all the relevant facts and circumstances, including factors in section 3A that apply to an Aboriginal person, when deciding a bail application where the new test applies. Where the high degree of probability test applies, however, greater focus is expected to be given to factors relevant to the risk of serious reoffending. When we talk about weighting, we are saying greater weighting should be given to the relevant factors to the risk of reoffending.

Rachel PAYNE: Why has the government chosen to impose a higher bail test, for certain nonviolent offences such as aggravated burglary with the intent to steal, than the test that applies to most serious offences, like rape and murder?

Enver ERDOGAN: Similar to the answer that I gave to Mr McCracken earlier, this is about the evidence of what is being repeated and causing high levels of harm and concern on a repeat basis. Just because an offence does not cause injury to a person does not mean it does not cause harm. The new test is about cracking down on these high-harm offences that are, according to evidence, most likely to be repeated on bail. These are the types of offences that when people are on bail they seem to be repeating and doing again and again and again. I think aggravated burglary, armed robbery, home invasion, aggravated home invasion, carjacking and aggravated carjacking seem to be the common themes, and obviously we are trying to target these for that purpose.

Katherine COPSEY: This concerns me – the government’s rhetoric of these ‘repeated offences’. It is a good segue into my next question. The Victorian Law Reform Commission found in 2022 that there is systemic overcharging carried out by Victoria Police – for example, children frequently charged with aggravated burglary or home invasion only to later have those charges reduced to trespass. When you talk about these patterns of charging, how are you ensuring that that established finding around Victoria Police systemically overcharging is not contributing to the government’s perception of harm?

Enver ERDOGAN: This is a difficult one because we are going into perceptions of overcharging, and you would understand that criminal investigations and the way law enforcement makes those decisions are matters for Victoria Police, so they are difficult ones for me to comment on. That is where I was going to end my answer, but if you want me to repeat part of it, I feel like it is a difficult one to comment on because Victoria Police makes these decisions independently in terms of what charges to press.

Katherine COPSEY: I am simply commenting on the law reform commission’s 2022 findings there. I should hope that the government has taken that into account in determining its definitions of high harm. Minister, I would like to ask what safeguards the government is putting in place to ensure that children who might be, as it is called by stakeholders, overcharged are not then subjected to an unfairly strict and in effect insurmountable bail test, particularly if they later have charges reduced.

Enver ERDOGAN: Yes. I think it goes to the fundamental way bail operates. Bail decision makers will be able to take into account relevant circumstances, and that includes the strength of the prosecution case. There are many examples we see in the youth justice system where the prosecutor and the bail decision maker will take an early preliminary view on the strength of the prosecution case and make a decision accordingly. I think we need to trust the bail decision makers to take in these factors. I think that is an important safeguard of our system.

Rachel PAYNE: Can the government clarify how it reconciles the Bail Act’s stated purpose of balancing community safety with the fundamental rights to liberty and the presumption of innocence, given that the offences captured by the high degree of probability test do not inherently involve the kind of serious, violent danger that would justify depriving an untried person of their liberty?

Enver ERDOGAN: This is about a balance here, and just because an offence does not cause physical harm to a person does not mean it does not cause harm. The high degree of probability test is a test that applies to a very targeted cohort, someone on bail for one of the six offences who is charged again with one of the six offences. The evidence shows that these are the offences that are more likely to be repeated on bail, so we are responding to a very real risk to community safety, because these six offences are inherently very dangerous, and in response we are being proportionate and targeted.

Ann-Marie HERMANS: I am just trying to get my head around some of the responses, they are a little bit convoluted for me. So you have mentioned the six – the armed robbery, aggravated burglary, home invasion, aggravated home invasion, carjacking and aggravated carjacking – and you have mentioned that if someone gets out on bail on one of these and then goes in on the same offence as I understand, then they might be refused bail. But if it is a different one of those six offences, then they could go out on bail again is my understanding, and if they then go and commit rape or kidnap or do a firebombing or run around with machetes and axes, if they are not doing one of those six things, they are still able to potentially be out on bail, so we could be looking at people who go out on bail several times. Is that correct?

Enver ERDOGAN: I think you have got a bit of a misunderstanding of how the Bail Act works. For a lot of those offences that are repeated, there will be almost a reverse onus of presumption against bail and they already have an exceptional circumstances test, which is a very high test for them to meet, but they would not be subject to the high degree of probability test. So a high degree of probability test, which is the new bit we have inserted, is only for those six offences. You are right: if you do those six offences and you do one of those six offences again whilst on bail, then yes, you get this new test. But for every other offence and especially the type of high-level harm offences you described, the exceptional circumstances test would apply, which is still a very high bar to pass. In most cases – murder is a good example, or rape – it is rare for people to be granted bail, even in the first instance, let alone if they were to recommit those offences. So there is a high test in place for those high schedules 1 and 2 offences in place already.

Ann-Marie HERMANS: But is it correct that it has to be the same offence that they are committing, or is it just any one of those six? Just to get some clarity, because I have a local issue. I want to put a scenario to you and just try to understand it, and then I will be finished.

Enver ERDOGAN: Yes, it is any of those six. You do not have to do the same offence, but if you are out on bail for one of those six and you commit any of those six, then you get this new high degree of probability test that applies to you.

Ann-Marie HERMANS: Thank you for this clarification. Just to understand, we have in my area people who have experienced carjacking from home invasions, where people have broken into their home, taken their keys and taken their car. It is not necessarily, though, a carjacking in Victorian terms because they may not have made a threat to individuals in the home, but they have taken their car and broken into their home, so that is a home invasion. Let us say they use that car for other purposes, for criminal activity, and then they torch it, because that is how they get rid of the evidence. Let us say they get caught for the home invasion and they are now out on bail. Now the gang – let us say they are part of organised crime in whatever regime that looks like – say, ‘You’re out on bail, so rather than you getting caught up on bail, you can be in charge of just torching the stolen cars.’ That then, as I understand it, would not be considered to be one of these high-risk offences, because they are not putting an individual at risk, they are just damaging property. So my understanding is that a person out on bail for one of these issues could then be involved in a number of criminal activities and still be allowed to be out in the community based on this bail law. Is that correct?

Enver ERDOGAN: Mrs Hermans, I think that is quite a hypothetical situation, but what I will say is if someone commits one of these six offences and they go and commit another one of these six offences, then the high degree of probability test will apply to them, but if they commit any other offence, than the high degree of probability test will not apply. But that does not mean that they will not be uplifted to the highest tests – the exceptional circumstances tests. Every situation is different, but for the high degree of probability test to apply you need to commit one of these six with another one of those six. You gave some really nasty examples, and I do appreciate that there are many of those kinds of examples across communities in Melbourne and across our state, so they are very real, and I feel that that is the real purpose of this bill, to address that kind of high harm. But if someone does a home invasion or a carjacking, the exceptional circumstances test, which is a very tough test, already should apply. But for the high degree of probability test you would need to commit one of those six with another one of those six. That is the formula under this new tough test, because they are the ones that we are seeing being repeated in our communities, and to be frank, this bill is rightfully targeting those offenders.

Katherine COPSEY: Just returning to consideration of section 3A by bail decision makers, considerations as to a person’s Aboriginality, section 3A was included in the Bail Act to mitigate systemic overincarceration of Aboriginal people and to protect Aboriginal people from the carceral system. Aboriginal people advocated for the inclusion and application of 3A. Returning to your answer before about the balance that bail decision makers are required to undertake in applying the high degree of probability test, how exactly does the government square this approach with not only your commitments to treaty and self-determination for Aboriginal peoples but also your longstanding commitments under the National Agreement on Closing the Gap and the Aboriginal justice agreement?

Business interrupted pursuant to standing orders.

Gayle TIERNEY: Pursuant to standing order 4.08, I declare that the sitting be extended by up to 1 further hour.

Enver ERDOGAN: Ms Copsey, the Aboriginal-specific considerations in section 3A of the act have not changed, and as I have said previously, the government is committed to advancing treaty in Victoria and to supporting Aboriginal self-determination. That is a commitment we have made. As we were saying, it is a commitment that we will keep, because this week we are planning to introduce that legislation, which will shortly be debated in this place and hopefully pass. So I would say that we are committed in terms of this bill. It is targeted at the high level of harm, and obviously there is always a balance in criminal justice reform. But the Aboriginal-specific considerations in section 3A of the act have not changed at all, and it is not true to say that this bill diminishes that obligation.

Rachel PAYNE: Proposed new section 4F would legislate the exact formula of bail conditions that led to the unjust bail decision in the case of Veronica Nelson, which we all know led to her tragic and preventable death in custody – namely, a double uplift provision for low-level offences with no consideration of section 3A and section 3AAA factors as mitigating considerations. Why is this government legislating this life-endangering formula and ignoring the coroner’s advice?

Enver ERDOGAN: From the outset I do want to express that the death of Ms Veronica Nelson in custody was a tragedy, and it was clear that, as the coroner found, there were a number of grave errors across the justice system that led to that. In relation to this specific provision in the act, I would say that it is not really necessarily correct to say that new section 4F would legislate the same formula of bail consideration that led to Veronica Nelson’s death. The high degree of probability test is specifically designed only for these six offences, so it is very different to her circumstances. The offences targeted pose a significant risk to the community and are a cause of significant community concern. In contrast, the double uplift, which was repealed in 2023, saw repeat offending for shoplifting of small groceries being uplifted all the way to exceptional circumstances once someone had breached their bail a couple of times. That is not where we want to end up, and that is why we have made sure that this bill has been formulated in this way.

Katherine COPSEY: Minister, I will be pleased if you disagree with me in relation to this question, because stakeholders have expressed concerns that the high degree of probability test is going to be almost impossible for bail applicants to satisfy, particularly those who find themselves in vulnerable circumstances, potentially without adequate representation, and therefore is tantamount to automatic detention in breach of the charter of human rights. How does the government justify the onerous burden that this test places on bail applicants against the principles of natural justice?

Enver ERDOGAN: I do disagree with you. We say it is not true, and we do not believe it will result in automatic remand, because there are still thresholds that need to be met and also the courts are required to still consider the surrounding circumstances in 3AAA, the Aboriginal and child-specific factors in section 3A and section 3B and the availability of bail conditions that might mitigate the reoffending risk. I can see many circumstances where the prosecution may pursue an outcome and not necessarily meet the test, and even when the test is applied it does not mean automatically that people will be remanded. So I do disagree, respectfully.

Rachel PAYNE: Minister, what bail supports is the government going to provide and fund to help vulnerable people avoid reoffending and being the subject of life-endangering double uplift provisions?

Enver ERDOGAN: I think it is ensuring that when people are in custody, they have appropriate supports. That means having mental health checks in place, and our partnerships in place for Aboriginal people. We have Aboriginal wellbeing officers and health checks – as I have said, physical and mental health checks. It is about making sure we have programs that people can engage in. I do not want to see people going unnecessarily into custody, and that is why this bill has been drafted – to avoid that unless there is genuinely a high risk to the community. That is what we have tried to do with the carve-outs, appropriately, to reduce the over-representation of people that are specifically vulnerable to legislation such as this. There is always more that can be done, but we have a range of programs to support people when they enter into custody, like I said, from mental health checks to physical health support, wellbeing officers and obviously a range of other wraparound supports available to people. But the key is to remind people that this bill is really targeted at the high-level repeat offending.

Katherine COPSEY: Minister, recognising the high prevalence of disability amongst people in contact with the criminal legal system, this amendment bill should be accompanied by adequate investment and resourcing for disability support and assessments at an early stage of the criminal legal process. This goes to the circumstances I was referring to earlier, where someone who is in a vulnerable circumstance may find themselves facing a very onerous bail test. What is the government investing in to provide support specifically for people with a disability around early intervention and prevention diversions through their contact with the criminal legal system through the NDIS?

Enver ERDOGAN: That is an important question. I guess in making decisions, bail decision makers must consider people’s vulnerability, including their disability. I have talked about duty lawyers and legal aid and the court integrated services program. That is trying to assist people to navigate the system through the bail process. I guess when people end up in a custodial setting, more so for sentenced prisoners, we do have release planning where we try to connect people with NDIS providers. But when people are coming in the front of the system, that kind of broader engagement with NDIS, because it is so fast and there is uncertainty about timing, is more challenging, to be frank, for the justice system as a whole. But it is about early detection and the court integrated services, duty lawyers and also bail decision makers taking the onus to refer people accordingly, especially in circumstances where people do not have those existing supports. I guess some people do have those supports, and that is the role of duty lawyers. Lawyers these days, especially upon recommendations from a number of reviews, are more aware of the cognitive ability of their clients. I do find, as a former personal injury lawyer myself, that lawyers are quite good at referring people to appropriate services. But in terms of getting people onto NDIS, they are more medical questions. I know for people coming out of the corrections system, we do refer them to appropriate services, because obviously they are not eligible for NDIS support whilst in custody.

Katherine COPSEY: Just so I can confirm, the government has not considered what extra supports will be needed for the large volume of people who will be swept up by these changes. You are not considering any additional resources specifically related to disability, despite the high prevalence of mental injury and disability for people getting swept up in the criminal justice system.

Enver ERDOGAN: I am not going to get into the considerations of cabinet, but I think part of that $727 million for preparing our custodial facilities is about having the service providers that are working behind the four walls to support people. But I guess in terms of the bail decision making process, as I have said, a lot of times people are referred to the NDIS. If they already have NDIS support, then I guess it is more straightforward, because those people will engage. But in other times it is about identifying those people and getting them referred on to the appropriate people at that early stage. I think it is something that we are focused on in custody to make sure that the service provisions that exist are scaled up proportionately.

Rachel PAYNE: Minister, I want to make reference to recommendation 92 of the Royal Commission into Aboriginal Deaths in Custody, which called upon governments to legislate that imprisonment should be only used as a last resort. However, we are hearing from community legal representatives and stakeholders that they fear the new bail test is going to be hard to satisfy and effectively will amount to automatic detention, against charter rights issues. Why is the government not following the recommendations of the Royal Commission into Aboriginal Deaths in Custody, considering it was 34 years ago that these recommendations were made?

Enver ERDOGAN: In Victoria we do have the lowest incarceration rate, but we do not have a legislated provision that imprisonment should be a last resort. I guess that is about creating that balance between the risk to community safety and making sure people are held accountable for their actions, especially where they have caused a high level of harm. We do not want people entering into custody for low-level offending, and I think this bill is another demonstration of that commitment. We are trying to create carve-outs and make sure that low-level repeat offending is not captured. We are focused on the high-level repeat offending, and I think that is our goal. We do have the lowest incarceration rate, as I have stated, but custody as a last resort is not necessarily what we have in particular in the adult system.

Katherine COPSEY: Minister, in New South Wales, a similarly worded high degree of confidence test has been condemned by the judiciary as:

… a ham-fisted attempt to deal with a political difficulty in a manner which … creates significant problems for the administration of justice and does not deal with the problem that was sought to be overcome …

How does the high degree of probability test in new section 4F differ from this New South Wales test?

Enver ERDOGAN: I guess the biggest difference is that our test forms part of the unacceptable risk test. This is a clear signal that the government considers these offences a serious risk to community safety. There is also just the way that the acts interact. Our act puts the onus on the prosecution to make it out, whereas if you read the New South Wales act, the onus is on the bail decision maker to consider with a high degree of confidence that the person will not repeat the same or a similar offence and harm. I think it is a tough test. They are very, very similar – I accepted that proposition earlier – but they apply in different ways. Theirs is like, ‘After all considerations that you’ve gone through for practicality, the test applies,’ whereas ours is incorporated into our existing unacceptable risk test.

Katherine COPSEY: I understand your point about where the onus of proving the application of the test lies, with that jurisdictional example in New South Wales. How about, though, the commentary that the New South Wales test attempted to deal with a political difficulty and did not overcome the problem that it sought to overcome? How is this approach in Victoria going to be any different?

Enver ERDOGAN: I am not going to comment about individual commentary on the judiciary of another state. But as you are very familiar with, many people have commented about our existing laws. Some have said they are disproportionate and too tough on alleged criminals; others have said they are too soft and do not go far enough. So I think there are different viewpoints on this legislation and its effectiveness will be tested in time. That is why it is great to see that a review is embedded, and that review will look at, I guess, the performance of these bail laws with the stated intention in today’s bill.

Katherine COPSEY: Okay, so moving to the review: can the government confirm that the legislated review of this bail change will be conducted publicly and transparently, with the findings of that review made available for scrutiny by Parliament and the community?

Enver ERDOGAN: I will seek some guidance.

Ms Copsey, you would appreciate that the review is slated for 2027, so there is the possibility of a new government and a new minister in that time. It is always difficult to make undertakings to bind a future government. We know that the chances of holding a future different government in particular would be difficult. But what I will say is that the Attorney-General, during her second-reading speech, did commit to co-designing a review with the Aboriginal Justice Caucus, and obviously I would expect with something that has been co-designed that the outcomes, because there is such public interest, you would share with the community. But again, I am reluctant to commit a future Attorney-General to what course of action they may or may not take. But we are committed, and it is legislated to have a review in 2027.

Georgie PURCELL: The proposed bail reforms expand the range of offences subject to the show compelling reason test. Given that people with psychosocial, cognitive or intellectual disabilities face systemic disadvantages that make it harder to satisfy these elevated thresholds, how will the government ensure that such reforms do not disproportionately deny people with disabilities access to bail?

Enver ERDOGAN: The uplift reforms in bail include safeguards to ensure proportionality, including carve-outs. When uplift does apply, bail decision makers must balance a complete, complex set of circumstances and weigh up many competing considerations when considering the show compelling reason test. These include consideration of all relevant circumstances, such as the strength of the prosecution case and the accused’s personal circumstances and criminal history. The Bail Act already requires decision-makers to take into account any special vulnerability and any support services that can assist the accused to comply with the bail undertaking. So I think there is a range of factors that the Bail Act already allows the decision-maker to consider.

Rachel PAYNE: The Victorian Alcohol and Drug Association reports that in 2024 more than 4600 Victorians were on the daily waitlist for alcohol and drug treatment, a 93 per cent increase since 2020. These delays mean that people who want help cannot get into the program, and under the proposed reforms, they would be forced to meet the show compelling reason test while still without treatment. How does the government justify a bail framework that risks remanding people for low-level offending simply because systemic failures in treatment access make it impossible for them to demonstrate compelling reasons for obtaining bail?

Enver ERDOGAN: That is absolutely not the intention of these reforms. I would say that is the policy of the opposition, not us. We are not seeking to make it harder for people to get bail if they cannot access supports. As we said, this bill is about striking the appropriate balance, especially for that high-level repeat harm.

Katherine COPSEY: Minister, the government promised Veronica Nelson’s family that they would never let anyone else suffer the injustice that she suffered when she was denied bail and left to die in a Victorian prison for a small-value theft that would not have ever resulted in a term of imprisonment at trial. Despite that promise, the government has set the cash value threshold for theft in this amendment bill so low that it will lead to more people who are just in financial need getting locked up. How can the government betray Veronica’s family and the broader Aboriginal community in this way?

Enver ERDOGAN: The death of Veronica Nelson was absolutely tragic. As I said earlier, she was failed at many stages of the justice system, including in the corrections system. But in relation to saying the thresholds are too low, we have set the threshold at $2500 for a single incident. I do not think that is so low. Those opposite will say that, but –

The DEPUTY PRESIDENT: Minister, I think you should just stick to answering the question from the government’s point of view. The committee stage is an important part of the bill that is used to interpret legislation, and you would not want to confuse that with talking about opposition policy – and it is not your place to announce opposition policy.

Enver ERDOGAN: Thank you, Deputy President. I will just say that with respect I do not agree with that. I think $2500 is not a low figure. Again, we have tried to distinguish between the common low-level theft and the higher level theft that we see, and I think $2500 strikes that balance.

Georgie PURCELL: Minister, women are disproportionately criminalised in circumstances linked to their experience of violence, such as defensive acts, low-level offending tied to poverty and control or being a co-accused of a perpetrator’s offending. Therefore the increased risks of the bail changes are heightened for victim-survivors of family violence. There was an assumption in the lower house debates that family violence is already signposted as a consideration in section 3AAA. However, it is not currently included. Explicitly listing victim-survivor status would provide clear legislative guidance that these circumstances are relevant and give bail decision makers clear authority to consider these matters. Why has this government refused to include consideration in this bill of being a victim-survivor of family violence as a critical safeguard for victims?

Enver ERDOGAN: I do appreciate the intent behind the Greens’ amendment. I thank Ms Copsey for bringing this important issue to the chamber and for her desire to protect survivors of family violence. I will say that the Attorney-General and the government are committed to doing further work in terms of the women’s safety package and we will have more to say later. There is momentum building for law reform in this area, but it is unclear what this amendment alone would achieve in practice, and the advice is that it may have some unintended consequences. We say that section 3AAA already allows bail decision makers to take into account all surrounding circumstances relevant to the matter before them, and the list is not exhaustive, so we say these factors are already considered. Further, there is section 4A. That step requires a bail decision maker to consider if there is a family violence intervention order made against the accused. There are already factors there where these are considered. The government is working on further law reform in this space, and the Attorney-General’s reform in relation to women’s safety will be introduced – the goal is later this year. Although well intentioned, I am not sure the amendment will have the impact that may be intended.

Katherine COPSEY: Minister, just returning now to the statutory review of the bill, you spoke before about the Attorney’s commitment to designing that review with the Aboriginal Justice Caucus. Clause 18(3) of the bill requires that a review of the bail amendments must expressly consider their impact on Aboriginal people. Can you give some further insight into what the Attorney plans as to how this review will include the Aboriginal Justice Forum and the Aboriginal Justice Caucus and the timing of this?

Enver ERDOGAN: I can envisage, just going off past engagement, that when they design what is to be evaluated in terms of the effectiveness, the disproportionate impact – all those factors – the guidance will be sorted with the Aboriginal Justice Caucus to make sure the elements that they want to be reviewed are reviewed. So their input directly will shape what the review takes into account – I think that is what we are looking at. But the Attorney-General would have been doing that herself. Especially when it involves Aboriginal people, she would be looking to the Aboriginal Justice Caucus to provide that input and ideas about what they want examined in the review, so setting up the evaluation criteria where it impacts Aboriginal people specifically to be led by the Aboriginal Justice Caucus. That is quite common; that already does happen in the justice space in what we call co-design, because we know that Aboriginal people do know best when it comes to their own communities. I think that is important. I am not sure if that has answered your question, Ms Copsey.

Katherine COPSEY: Will the review also consider the impacts on other cohorts over-represented in the justice system, such as women, children and people with a disability?

Enver ERDOGAN: Yes, I think that is clear with the intention of this bill. We should look at those factors. One trickier one that I think is worth looking into as well – but the data is not as good I think – is the disproportionate impact on CALD communities. I am now pre-empting the work of a future Attorney-General, but I think definitely we need to pay attention. We know in our corrections system – and as minister I have seen it – that there is definitely a minority–majority system, that is for sure, so it is something that we need to be aware of and seek to address where we can.

Rachel PAYNE: Minister, I too would like to ask a question in regard to the statutory review. You did point to the co-design with the Attorney-General and the Aboriginal Justice Caucus, so you may have partly answered this question, but I will ask it anyway just to clarify. Will the review consider the effects of the amendments on offending and reoffending rates, bail and remand rates, long-term social and emotional wellbeing of Aboriginal people in contact with the legal justice system, justice and health-related outcomes under the National Agreement on Closing the Gap and Victorian Aboriginal Affairs Framework, summary data of the reasons given by bail decision makers for refusing bail, access to culturally safe and appropriate bail hearings and, finally, access of culturally safe and appropriate support services for Aboriginal people on remand, including health care?

Enver ERDOGAN: Thank you, Ms Payne, for that quite detailed question. I cannot commit to the review incorporating all that, because it is going to be co-designed, but many of them are really good factors to look at. Recidivism rates and all those factors are really good broad principles that you would want to observe and see the effect they have had. But I cannot say that all of them will be incorporated, because I think it is a quite a detailed list, and I guess we will let the co-design take place. A lot of those points I am sure would be in it, but probably not all of them.

Katherine COPSEY: This is my last question. I have some queries around the government’s purpose or intention in relation to part 3, clause 22, which is the part of the bill that substitutes ‘a person’ for ‘an accused’. Minister, can you speak briefly to the government’s intention in this broadening of the application of that section? Something I am keen to understand is in relation to family violence safety notices. There are bail-like conditions that can be placed on those orders, and what I am concerned about and what stakeholders have raised with me is if you are broadening that definition of ‘an accused’ and replacing it with ‘a person’, then people who have been placed on a family violence order could be swept up in that ‘a person’ definition. I would like to understand the government’s intention and how you are going to ensure that that vulnerable cohort are not swept up unintentionally in this change.

Enver ERDOGAN: I might seek some guidance from the box.

That is a very technical question. I understand that it is a consequential amendment; it is not intended to have the impact you outlined and that you are concerned about. This is just to clarify where a respondent to a family violence intervention order application is on bail and breaches conditions designed to protect a victim-survivor, they are liable to the offence of breaching bail conditions. Because some people may not be an accused – they may be a respondent – changing the definition to ‘a person’ means they are still covered. It is a technical issue about being a respondent, not necessarily being an accused.

Katherine COPSEY: Apologies, I am just going to ask it, because I do not feel I asked that question particularly clearly either. A respondent to a family violence safety notice can be placed on bail to appear at the hearing of an application for an interim intervention order that is triggered by the family violence safety notice. But, Minister, the concern we have is that we know and the government has acknowledged that police misidentification of the primary aggressor in family violence incidents is prevalent. This can occur, for example, where someone is in a family violence situation and acts of self-defence or the like see them misidentified as a perpetrator where in fact they are a victim. This amendment could expose misidentified family violence victims to charges for breaching bail. What safeguards are the government putting in place to ensure that misidentified victims are not captured by this amendment, because they will be subject to compliance with bail conditions requirements before there is an opportunity for court oversight essentially. What safeguards are you putting in place to prevent that? And can you confirm that it is not the government’s intent for that situation to occur?

Enver ERDOGAN: I guess we would say that the risk of being misidentified is not amplified by this. It is not a major amendment, it is just a clarifying one. There are different processes to a family violence safety notice. This process involves a court putting a respondent on bail. Where a respondent is put on bail, it will be a court that puts the person on bail. This is an alternative process to family violence safety notices, where police issue the notice.

The DEPUTY PRESIDENT: I invite Ms Payne to move her amendment 1, which tests all of her remaining amendments.

Rachel PAYNE: I move:

1. Clause 1, line 5, omit “that” and insert “that, for 3 years,”.

This amendment will insert a three-year sunset clause for the high degree of probability test, meaning that after three years of this bill being in operation the test will cease to operate. This is based on similar legislation that was introduced in New South Wales in changes to their Bail Act in an effort to reduce youth crime through therapeutic and community-based solutions. We would like to see that bail laws like this are not necessary in the long term and that there is an opportunity to look at whether they are fit for purpose and whether they are continuing to serve the community as appropriate. The intent is also to hold the government to account. The sunset clause means that if the government want to keep the high degree of probability test, they would come back to Parliament to ensure that that was enacted.

Enver ERDOGAN: The government will not be supporting this amendment. We do not support a sunset clause because we are concerned that it will risk undermining the certainty and stability that is needed in our bail laws. We have also already committed to a statutory review of the bail laws. If those issues or concerns that you have come out through that process and it is having an unintended effect, there will be opportunities for a future government to correct that. The new test is carefully targeted to address repeat high-harm behaviour. We want an enduring outcome. This is it for the bail laws. We have had a number of discussions, and these are the final settings, but of course if the review finds something else, a future government can consider that. A sunset clause is not something we would consider.

Katherine COPSEY: The Greens will be supporting the Legalise Cannabis amendment. It is interesting to hear the government talk about certainty in relation to bail reform when we are seeing the government rip up its own progressive reforms to bail that were enacted just earlier this term. We are gravely concerned about the impacts that the extremely onerous tests that the government is imposing with the high degree of probability test are going to have. It is going to lead to overincarceration of vulnerable populations in Victoria, and it is going to contribute to, sadly, the risk of further deaths in custody. We are fully supportive of the sunset clause as proposed by Legalise Cannabis, and we would urge other parties to take the opportunity to limit the harm that this bad bill is going to do.

Joe McCRACKEN: I will just quickly say the coalition will not be supporting these amendments.

Council divided on amendment:

Ayes (6): Katherine Copsey, Anasina Gray-Barberio, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell

Noes (28): Ryan Batchelor, Melina Bath, John Berger, Lizzie Blandthorn, 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, Nick McGowan, Tom McIntosh, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell

Amendment negatived.

The DEPUTY PRESIDENT: I invite Ms Copsey to move her amendment 1, which tests amendment 2.

Katherine COPSEY: I move:

1. Clause 1, page 2, after line 13 insert –

“(iva) to provide that where that Act requires surrounding circumstances to be taken into account, this includes particular circumstances relating to family violence and social or economic disadvantage; and”.

This amendment standing in my name relates to making it explicit in the act that consideration of surrounding circumstances by bail decision makers is to include particular circumstances relating to family violence and social or economic disadvantage, as was discussed during some of the committee questions. It is clear from some of the government contributions in the lower house that this is considered to be implicit or that some of the government MPs are under the impression that this is something that bail decision makers are supposed to take into account. We think that it is fair and will reduce the discriminatory impact of this bill by explicitly acknowledging that in the surrounding circumstances portion of the bill.

Joe McCRACKEN: The coalition will not be supporting this.

Enver ERDOGAN: The government will not be supporting this amendment.

Council divided on amendment:

Ayes (6): Katherine Copsey, Anasina Gray-Barberio, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell

Noes (28): Ryan Batchelor, Melina Bath, John Berger, Lizzie Blandthorn, 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, Nick McGowan, Tom McIntosh, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell

Amendment negatived.

Joe McCRACKEN: I move:

2. Clause 1, page 2, line 24, omit “offence.” and insert “offence; and”.

3. Clause 1, page 2, after line 24 insert –

“(c) to further amend the Summary Offences Act 1966 so that the offence of contravening certain conduct conditions applies to children on bail.”.

We want to remove the current exemption for youth offenders who breach bail conditions without reasonable excuse. That is basically the thrust of these amendments.

Enver ERDOGAN: I would like to indicate the government will not be supporting this amendment.

Katherine COPSEY: The Greens will not be supporting this amendment. We do not support the Liberals’ continued push to throw more and more children into Victorian prisons.

Council divided on amendments:

Ayes (14): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Rikkie-Lee Tyrrell

Noes (20): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, Michael Galea, Anasina Gray-Barberio, Shaun Leane, David Limbrick, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney

Amendments negatived.

Clause agreed to; clauses 2 to 4 agreed to.

Business interrupted pursuant to standing orders.

Jaclyn SYMES: Pursuant to standing order 4.08, I move:

That the sitting be extended.

David DAVIS: I think it is important to put on record that the government’s shambolic management of bills this week has forced this late sitting. I mean, it is out of control the way they brought this bill in without actually dealing with this for weeks and weeks and weeks.

Members interjecting.

David DAVIS: I am allowed to talk to this.

Members interjecting.

David DAVIS: I am. No, I am.

Jaclyn Symes: On a point of order, I ask the Deputy President to put the question.

The DEPUTY PRESIDENT: Mr Davis, sorry, there is a question before the floor, so we need to deal with the question before the floor.

Motion agreed to.

Clause 5 (00:00)

Katherine COPSEY: I move:

1. Clause 5, line 24, after “burglary)” insert “in circumstances where what the intent that is alleged is the intent of committing an offence involving an assault to a person”.

I will actually speak to all of my amendments on sheet 56C at once now. Repeatedly throughout the debate and in the rhetoric that has been expressed through the media the government has been speaking about how these are targeted laws and they are targeted to high harm. We share the grave concerns of stakeholders from First Nations legal human rights backgrounds that the government is not actually being as targeted in its intent as it thinks. I think the ballooning numbers of people on remand speak to just how poorly targeted tranche 1 was. We are concerned that we are also going to see people who have not committed violent or intended to be violent offences and people who have in fact committed relatively low property offences swept up in these changes. The effect of these amendments will be to require that in order to be subject to the high-harm provisions the commission of the acts would require there to have been an offence involving an assault or the intent of assault or threatened use of force or use of force and also to shift some of the property offences into schedule 4 with the exemption from the high probability test. The intent of this group of amendments is essentially to align the bill more squarely with the government’s stated rhetoric.

I will put on the record that when we discussed the initial bail amendments the Greens put forward our own set of amendments to the bail bill that this session of Parliament first considered that would have replaced bail tests with a single unacceptable risk test, which is the core thing that community members are seeking to have bail decision makers rule on, would streamline decision-making under the act and would align with Poccum’s law. We want to see bail that is effective. We do not think that the government’s approach in this bill is going to achieve the end it seeks, and we are trying to ameliorate what we think will be some of the worst sweeping effects of this that will see people who may not ultimately face a term of imprisonment, even if convicted, swept up in the criminal justice system.

Enver ERDOGAN: The government will not be supporting these amendments, as we say that we have struck the right balance in terms of balancing the interests of justice. We think the changes are proportionate and fair.

Joe McCRACKEN: The coalition will not be supporting these amendments either.

Council divided on amendment:

Ayes (6): Katherine Copsey, Anasina Gray-Barberio, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell

Noes (28): Ryan Batchelor, Melina Bath, John Berger, Lizzie Blandthorn, 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, Nick McGowan, Tom McIntosh, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell

Amendment negatived.

Katherine COPSEY: I move:

2. Clause 5, page 4, line 9, omit “(a).” and insert “(a); and”.

3. Clause 5, page 4, after line 9, insert –

“(c) who is alleged to have used or threatened to use force against any other person in the commission of –

(i) the offence of which they are accused as referred to in paragraph (a); and

(ii) the offence for which they were on bail as referred to in paragraph (b).”.

Council divided on amendments:

Ayes (6): Katherine Copsey, Anasina Gray-Barberio, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell

Noes (28): Ryan Batchelor, Melina Bath, John Berger, Lizzie Blandthorn, 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, Nick McGowan, Tom McIntosh, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell

Amendments negatived.

Clause agreed to.

Clause 6 (12:10)

Katherine COPSEY: I move:

4. Clause 6, after line 9 insert –

“(ab) an offence against section 197(1) or (3) of the Crimes Act 1958 that is not charged as arson; or”.

5. Clause 6, line 16, omit “4;” and insert ‘4;”.’.

6. Clause 6, lines 17 and 18, omit all words and expressions on these lines.

The DEPUTY PRESIDENT: This amendment also tests Ms Copsey’s amendments 7 to 18.

Council divided on amendments:

Ayes (6): Katherine Copsey, Anasina Gray-Barberio, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell

Noes (28): Ryan Batchelor, Melina Bath, John Berger, Lizzie Blandthorn, 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, Nick McGowan, Tom McIntosh, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell

Amendments negatived.

Clause agreed to; clauses 7 to 18 agreed to.

New clause (00:13)

Katherine COPSEY: I move:

1. Insert the following New Clause before clause 19 –

‘18A Guiding principles

In section 1B(1) of the Principal Act –

(a) in paragraph (d), for “procedures.” substitute “procedures; and”;

(b) after paragraph (d) insert –

“(e) taking into account issues that arise due to a person’s Aboriginality when making a determination under this Act in relation to that person.”.’.

This is the amendment which inserts into the guiding principles of the principal act the requirement for bail decision makers to take into account issues that arise due to a person’s Aboriginality when making a determination under this act in relation to that person.

Joe McCRACKEN: The coalition will not be supporting this.

Council divided on new clause:

Ayes (6): Katherine Copsey, Anasina Gray-Barberio, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell

Noes (28): Ryan Batchelor, Melina Bath, John Berger, Lizzie Blandthorn, 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, Nick McGowan, Tom McIntosh, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell

New clause negatived.

Clauses 19 to 23 agreed to.

Reported to house without amendment.

Enver ERDOGAN (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice) (00:18): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Enver ERDOGAN (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice) (00:18): I move:

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

Council divided on motion:

Ayes (28): Ryan Batchelor, Melina Bath, John Berger, Lizzie Blandthorn, 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, Nick McGowan, Tom McIntosh, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell

Noes (6): Katherine Copsey, Anasina Gray-Barberio, Sarah Mansfield, Rachel Payne, Aiv Puglielli, Georgie Purcell

Motion agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council has agreed to the bill without amendment.