Bail Amendment Bill 2023

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

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

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

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

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

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

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

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

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

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

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

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