Hansard debates

Ordered that second-reading speech be incorporated into Hansard on motion of Ms PULFORD (Minister for Agriculture).

Ms PULFORD (Minister for Agriculture) — I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Bail Amendment (Stage One) Bill 2017 will introduce the first of a series of changes to improve bail laws in Victoria. Following the tragic events that took place on Bourke Street the government asked the Honourable Paul Coghlan, QC, to conduct a review of Victoria's bail laws. Mr Coghlan has provided government with two reports advising on legislative and practical reforms needed to manage risk and maximise community safety. In this bill, the government takes the first step to implement many of the recommendations made in Mr Coghlan's first report.

Mr Coghlan's first report highlighted the need for bail laws to be clarified so that bail decision-makers can apply the appropriate risk assessment when making bail decisions. To this end the bill will amend the Bail Act 1977 to:

insert a purpose and guiding principles section into the Bail Act;

clarify the tests for granting bail;

clarify powers of police, bail justices and the courts to grant bail;

clarify provisions relating to bail conditions; and

make amendments to the Bail Act recommended by the family violence royal commission.

The bill has a default commencement date of 1 July 2018; however, the government will work to ensure that the reforms commence as soon as possible.

New purpose and guiding principles

The Bail Act 1977 does not have a purpose or guiding principle section. The bill will introduce a new purposes section and guiding principles to inform the community about the purposes of bail and remind decision-makers of some important considerations relevant to bail. This will remind decision-makers of some important considerations relevant to bail, in particular balancing the presumption of innocence and the protection of the community.

Clarifying the tests for granting bail

Mr Coghlan identified that bail laws need to be clear, accessible and coherent to work effectively. Clear laws will help the community understand how and why bail decisions are made, and ensure that they are applied appropriately by decision-makers. The current tests for granting bail are unnecessarily complex and confusing. Some offences carry a presumption in favour of bail, others carry a presumption against and there are some offences where no presumptions apply. Some offences require the prosecution to establish that the accused is an unacceptable risk, and other offences require the accused to establish 'exceptional circumstances' or 'show cause' as to why bail should be granted. 'Exceptional circumstances' and 'show-cause' offences are listed variously throughout the Bail Act which has added an unnecessary layer of complexity to bail decision-making. To address this, the bill will create a schedule 1 and 2 to the Bail Act to contain lists of offences where the presumption in favour of bail is reversed, requiring the accused to prove 'exceptional circumstances' for certain offences (schedule 1) and 'show compelling reasons' for certain offences (schedule 2).

The bill changes the current wording of 'show cause' to 'show compelling reason'. A change in the wording of the show-cause test was recommended by Mr Coghlan, in order to make absolutely clear that persons who face this test are to be refused bail unless they show compelling reasons why it should be granted.

New offences will be introduced into both schedules to expand the categories of offences where the presumption in favour of bail does not apply to include a greater range of serious and violent offences. This will make it harder for people alleged to have committed violent and other serious offences to receive bail.

The serious offences of aggravated home invasion and aggravated carjacking will be made schedule 1 offences, meaning bail will be granted only where the accused can demonstrate exceptional circumstances. Attempts to commit a schedule 1 offence will also be considered a schedule 1 offence. This means there will no longer be a presumption in favour of bail for those accused of attempted murder.

A number of offences are being added to 'schedule 2', or the category of offences that will require an accused to show compelling reason to be granted bail. These include manslaughter, child homicide, rape, armed robbery and carjacking.

The bill does not otherwise alter the reverse onus tests which will continue to apply to schedule 1 and schedule 2 offences committed by an adult and a child. The government is still considering Mr Coghlan's recommendations about how these tests could be reformulated. Any changes to the tests will be included in a later bill.

Committing further offences while on bail

Bail is designed to ensure that the accused will attend court and will not interfere with the justice process or commit further offences. Under the current law there are some circumstances where an accused that has committed certain further offences will reverse the presumption in favour of bail. This bill will go further by introducing circumstances where the accused will be required to show either 'exceptional circumstances' or 'compelling reason' as a result of their further offending. Changes brought under this bill will mean that people who commit serious indictable offences while on bail, summons, parole, under sentence or at large, will not be granted bail again unless they can prove there are exceptional circumstances or compelling reason, depending on the severity of their further offending.

This change makes it even more difficult for people to get bail if they have committed further offences in circumstances where they are already at conditional liberty.

Bail decisions deferred if accused is intoxicated

The bill will also make changes to provide that a bail decision can be deferred for a limited time where the accused person is intoxicated and therefore unable to participate in the bail hearing. This proposed section will allow police and courts to defer a bail decision if a person is intoxicated but stipulates that this deferral must not be more than a total of 8 hours. This will ensure bail justices and others are not endangered by having to make decisions about an intoxicated person.

Changes to who can grant bail

The bill will clarify the powers of police, bail justices and courts to grant bail to ensure that bail tests are applied properly by decision-makers.

The bill will specify the power of police to grant or refuse bail, and the power of bail justices to grant or refuse bail and the circumstances in which they can exercise these powers. The bill will also clarify and simplify the powers of a court to grant or refuse bail.

The bill will also make changes so that bail for persons charged with 'exceptional circumstances' offences (the most serious offences) will now only be able to be granted by a court rather than by police or a bail justice.

The government has foreshadowed that there will changes to police remand and the role of bail justices. These changes are complex and are still being considered by government. The relevant changes will be part of a further bill.

Bail conditions

The bill will clarify the Bail Act provisions relating to conditions of bail. Bail conditions are imposed to protect the safety of the community or particular individuals. Changes will be introduced to make sure that bail decision-makers, for all offences, take community safety into account when imposing bail conditions.

Additional changes will be made to change the language in section 5 of the Bail Act, which deals with conditions, as it is out of date and needs updating. This bill will redraft section 5 to ensure that it is easy to understand for those that apply it.

Implementing the Royal Commission into Family Violence bail recommendations

The bill will provide that any conduct condition of bail will continue to have effect until that condition is varied or revoked, or the matter is finalised. This change implements part of recommendation 80 of the Royal Commission into Family Violence.

This issue, however, is not limited to accused in family violence matters. Under current law conditions cease to apply once a person has failed to answer bail and a warrant has been issued for their arrest. The bill addresses this anomaly and will close a loophole that meant persons who fail to answer bail are relieved of complying with bail conditions.

It is important to ensure that an accused continues to be bound by their conduct conditions until a court has another opportunity to consider the issue of bail. This change reflects the important role that conduct conditions play in protecting alleged victims and the broader community.

Bail conditions and family violence

In line with recommendation 80 of the Royal Commission into Family Violence, the bill will make changes to ensure that bail decision-makers consider risks of family violence when making bail decisions. The bill will amend the Family Violence Protection Act 2008 to insert provisions which explain the relationship between bail conditions and family violence safety notices, and between bail conditions and family violence safety notices. The bill will clarify that where a person is subject to both bail conditions and family violence safety notice or intervention order conditions, the safety notice or intervention order conditions will prevail to the extent of any inconsistency.

The changes are for the important purpose of protecting the safety and wellbeing of victims of family violence, specifically by ensuring the likelihood of persons committing family violence is a relevant bail consideration to inform whether or not they are remanded in custody or released subject to bail conditions aimed at preventing such violence.

Further legislation

As I have noted, this bill represents the first stage of this government's reform to the Bail Act to increase community safety and public confidence in the bail system.

This bill contains the legislative reforms recommended in Mr Coghlan's first report that can be implemented immediately. A further bill will be introduced later this year to implement the remaining recommendations from this report, and other reforms.

This second bill will amend the Bail Act to make changes to the unacceptable risk test and reverse onus tests including, but possibly beyond, those recommended by Mr Coghlan. Mr Coghlan has provided advice on how these tests can be strengthened. The government is considering this advice and determining how best to ensure the tests appropriately reflect community expectations about the grant of bail.

Additionally, the second bill will introduce a system of police remand, under which police will have the ability to remand an accused person for a certain period of time, until a court is available to consider the question of bail. Such a system was proposed by Mr Coghlan in his second report. The government is considering this recommendation, and other models of police remand, to determine how best to implement this proposal.

The second bill will also implement Mr Coghlan's recommendation that a person on two undertakings of bail only be able to be granted further bail by a court. This reflects community expectations that judicial rigour ought to be imposed upon those who commit further offences whilst on multiple grants of bail. Mr Coghlan recommended deferral of this recommendation to allow other reforms to take place first.

Mr Coghlan's second report also includes recommendations for legislative reform. These are longer term recommendations, which will require, as recommended by Mr Coghlan, consultation with a range of stakeholders. The recommendations include a complete rewrite of the Bail Act. These are also under consideration by government and not all of these recommendations will be able to be implemented in the second bill.

This bill and the commitment for future reforms to the Bail Act demonstrates that the government is committed to ensuring that the Victorian community has confidence in our bail system and its outcomes. Mr Coghlan's review found that Victoria's bail system is arguably the most onerous in Australia. The government's reforms will make it even stronger.

The government thanks Mr Paul Coghlan, QC, and his team for its extensive work and thorough report reviewing bail in Victoria.

I commend the bill to the house.

Debate adjourned for Mr RICH-PHILLIPS (South Eastern Metropolitan) on motion of Mr Ondarchie.

Debate adjourned until Thursday, 15 June.