Hansard debates

Ms PULFORD (Minister for Agriculture) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the 'charter'), I make this statement of compatibility with respect to the Bail Amendment (Stage One) Bill 2017.

In my opinion, the Bail Amendment (Stage One) Bill 2017, as introduced to the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

Overview

The purpose of the Bail Amendment (Stage One) Bill 2017 (the bill) is to implement the first tranche of changes to bail laws arising out of the Bail Review undertaken by the Honourable Paul Coghlan, QC. This is achieved through amendments to the Bail Act 1977 to:

a.     insert a purpose and guiding principles section into the Bail Act to clearly set out the purposes of bail and remind decision-makers of the important legal principles relevant to bail, in particular balancing the presumption of innocence and the protection of the community;

b.     insert two schedules into the Bail Act reflecting the offences which require an accused to 'show compelling reason' or 'exceptional circumstances' to be granted bail, and provide that an accused who commits certain further offences while on conditional liberty will be subject to either the 'show compelling reason' or 'exceptional circumstances' test for bail;

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

d.     clarify provisions relating to bail conditions;

e.     implement recommendations made by the Royal Commission into Family Violence in relation to bail.

Human rights issues

In Victoria, there is a presumption that a person accused of an offence who is held in custody shall be granted bail. This reflects section 25(1) of the charter which states that a person has the right to be presumed innocent until proven guilty, and supports an accused person to remain in the community pending the determination of the charges. This presumption of bail is subject to a number of exceptions, directed at ensuring that an accused person is not a danger to the public, does not commit offences while on bail, and appears at subsequent criminal hearings including their trial.

This bill makes important changes to Victoria's bail laws, without affecting the substantive rights of a person who has been accused of committing an offence, and who has a right to be presumed innocent until proven guilty.

Right to liberty and security of person (section 21)

Section 21 of the charter provides that every person has the right to liberty, and that a person must not be deprived of his or her liberty, except on grounds, and in accordance with procedures, established by law. Section 21 also provides that every person has the right to security.

The right to liberty needs to be balanced with the right to security, specifically, the community's right to safety and security, which includes protection from being subject to criminal offending. The bill introduces purpose and guiding principles sections into the Bail Act, reinforcing these important values. These guiding principles refer to the importance of maximising community safety and the safety of persons affected by crime to the greatest extent possible, and also the right to liberty.

This bill preserves the general presumption in favour of bail. It also enhances the tests for bail to ensure that people who are an unacceptable risk to community safety are subject to reasonable limits on their liberty so that they do not endanger the security of members of the public.

Section 21(5)(a) provides that a person who is arrested or detained on a criminal charge must be promptly brought before a court. This bill engages this right as it will permit a police officer, a bail justice or a court to defer making a bail decision for up to four hours where an accused person is intoxicated and therefore unable to participate in a bail hearing. After this time, if the person is still intoxicated, the decision about whether to grant bail may be deferred for up to one further four-hour period. This is to ensure that an accused person can meaningfully be involved in the hearing of their bail application, and to also prevent heavily intoxicated people from damaging property or assaulting police and custodial staff. I note that the Bail Act 2013 (NSW) includes a similar provision, which allows a court or authorised justice to defer making a bail decision if an accused person is intoxicated for up to 24 hours. This limitation in this bill on the right to be promptly brought before a court is reasonable and justified under section 7(2) of the charter as it only applies to a relatively short time period, and the deferral in bringing an intoxicated accused person before a bail decision-maker is not arbitrary.

The bill also provides that only a magistrate or a judge will be able to grant bail for accused people who have been charged with an offence that subjects them to an 'exceptional circumstances' bail test. This will mean that police and bail justices will not be able to grant bail for a relevant accused. This also means that an accused who is in the 'exceptional circumstances' category for bail may be detained for a longer period of time until their matter can be brought before a court. This is a proportionate approach as only the most serious offences are included in the 'exceptional circumstances' category test for bail. In practice it would be rare for police or a bail justice to grant bail to an accused person who has been charged with a relevant offence. Further, due to the seriousness of the offences in this category — for example, murder and large commercial trafficking of a drug of dependence — it is appropriate and reasonable that a bail decision be made by a judicial officer, mindful of the legal principle that an accused is innocent until proven guilty. This amendment maintains judicial discretion and allows for thorough consideration of an individual accused's circumstances in determining the question of bail.

The impact of these amendments on a person's right to liberty is minimal and justifiable under section 7(2) of the charter.

Implementing Royal Commission into Family Violence bail recommendations

The bill will also require bail decision-makers to consider the risk of family violence when making bail decisions, and also ensures that bail decision-makers enquire as to whether there has been a family violence intervention order or safety notice issued against the accused. The bill will also clarify that where a person is subject to both bail conditions and a family violence safety notice or intervention order, the safety notice or the intervention order conditions will prevail in the event of inconsistency. This amendment implements a recommendation made by the Royal Commission into Family Violence.

This amendment limits the right to liberty under section 21 as it may mean that a person accused of a family violence offence, or an accused at risk of perpetrating family violence, will be remanded in custody, or if granted bail have additional conditions imposed upon them.

However, such limitation is reasonable and justified under section 7(2) of the charter, as the changes are for the important purpose of protecting the right to security and the safety and wellbeing of victims of family violence. The bill does this by specifically ensuring that the likelihood of persons committing family violence is a relevant bail consideration, to inform bail decision-makers about whether or not that person should be remanded in custody or released subject to bail conditions aimed at preventing such violence. Additionally, these provisions promote the right in section 17 of the charter to protection of families and children, by recognising the fundamental role that the family unit has in society and the particular importance of protecting children from violence.

In my opinion this bill does not unreasonably limit the rights of liberty and security under the charter.

Humane treatment when deprived of liberty (section 22)

Section 22 of the charter provides that all persons deprived of their liberty must be treated with humanity and dignity. Section 22(2) states that accused people who are detained must be segregated from convicted persons, except where reasonably necessary.

This bill does not impact on how people are treated while they are detained awaiting a bail decision or otherwise on remand pending determination of criminal proceedings. In certain circumstances, it may be necessary for a person on remand to be temporarily accommodated with a convicted prisoner, for example, to facilitate appearances at court hearings or in response to temporary restrictions in correctional facilities. Existing safeguards, such as the requirement that an accused is brought before a bail justice or a court as soon as practicable are retained.

This bill does not affect the circumstances in which an accused person is detained, and in my opinion does not engage the right to be treated humanely or to be segregated from convicted persons when deprived of liberty.

Children in the criminal process (section 23)

Section 23 of the charter specifies additional requirements for the humane treatment of children who are detained in the criminal process, including that they be brought to trial as quickly as possible and are treated in an age-appropriate manner. Section 23 also provides that accused children must be segregated from adults when detained.

There are some aspects of the bill which are relevant to this right, including the amendment to allow a bail decision to be deferred where an accused person is intoxicated and therefore unable to participate in a bail hearing, and the requirement that only a magistrate or a judge can grant bail for an accused who is charged with an offence that subjects them to an 'exceptional circumstances' bail test.

The criminal justice system in Victoria treats children differently, and prioritises and expedites the hearing of matters involving a child accused. The amendments in this bill are proportionate to the level of alleged offending and the risk of harm that an accused child poses to the safety and security of Victorians. Existing safeguards for children are retained and clarified in this bill. For example, all bail decision-makers are required to take into account a number of factors relevant to children including the desirability for the children's living arrangements, education, training and employment to not be interrupted and the need to preserve and strengthen relationships with family and carers; and bail decision-makers must ensure that the child's parent, guardian or an independent person is present during bail proceedings. The bill also specifically refers to the rights of children contained in section 23 of the charter to guide decision-makers considering whether to release an accused on bail and any bail conditions. Further, in practice children are kept in separate facilities when remanded, and are not detained with adults.

This bill will not result in a child being unnecessarily remanded and will not have a disproportionate effect on children who have been detained. In my opinion the rights of children in the criminal process are preserved.

Rights in criminal proceedings (section 25)

Section 25 provides a number of rights in criminal proceedings, including the right to be presumed innocent until proved guilty and to be tried without unreasonable delay.

This purpose and guiding principles that are inserted into the Bail Act by this bill remind decision-makers of the important legal principles relevant to bail. Specifically, the guiding principles recognise the presumption of innocence that is protected by section 25(1) of the charter.

The bill amends the existing 'show-cause' bail test, to a test requiring an accused to 'show compelling reason'. This amendment is intended to clarify the application of the existing 'show-cause' test which is ambiguous, not easily understood and can result in insufficient weight being given to the various factors relevant to a grant of bail. In practice, the show-cause test applies as an onus on the accused to demonstrate why their release into the community is justified, and therefore this clarification to require an accused to 'show compelling reasons' does not represent a significant departure from existing provisions, nor does it impact on an accused's person's rights in criminal proceedings. It is possible that this clarification will in some cases mean that a bail decision-maker applies a more rigorous approach to the question of bail, however the offences in this category are sufficiently serious to justify a thorough consideration of whether a person shall be released into the community on bail.

This bill introduces a new exception to the presumption of bail, by requiring accused persons who commit certain offences while on bail, summons, parole, subject to an arrest warrant, or subject to a supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009 to satisfy the 'show compelling reason' or 'exceptional circumstances' test for bail. This is relevant to the right in section 25(1) to be presumed innocent until proven guilty, as it will place an accused in a reverse onus position for a grant of bail, based on the accused person's historical involvement with the criminal justice system. This will mean that it will be harder for an accused person who falls into one of these categories to be granted bail.

The purpose of this provision is to recognise that an accused person who is on conditional liberty, for example on bail or on parole, and who is charged with offending presents a higher level of risk to the community. The accused person's history of offending or alleged offending is relevant to the consideration of whether an accused will pose an unacceptable risk or endanger the community. Therefore, the decision about whether or not that accused person is to be granted bail should be subject to greater scrutiny in light of the associated concerns to public safety, and the rights of the community to safety and security. The limitation of this amendment on an accused person's rights are justified under section 7(2) of the charter as it is reasonable and proportionate to the risk of harm posed by people accused of repeated offending.

The amendments made by this bill are tailored, and relate to the more serious instances of criminal offending and to people accused of repeatedly breaching their bail or the conditions of other court orders. This bill allows a bail decision-maker to consider the individual circumstances of an accused in considering whether to grant bail, and balances the competing needs relevant to bail decisions and community protection without overly restricting the human rights of an accused.

This bill does not affect a person's ability to respond to the allegations made against them, including in relation to why they would present an unacceptable risk on bail, to advocate for why they should be released into the community, to make subsequent applications for bail or to have their matters determined consistently with criminal procedure.

In my opinion this bill does not unreasonably limit any charter rights. The right to freedom of movement in section 12 of the charter is justifiably limited by the need to protect the community against an unacceptable risk to security and safety. A person's right to choose where they live is supported by the presumption in favour of bail and by requiring any bail conditions to only be imposed where necessary, for example, to reduce the likelihood of further offending or endangering the safety and wellbeing of any person. The Bail Act, and this bill, also have consequential impacts on the right in section 13 for a person's reputation to not be unlawfully attacked and the rights in section 16 to peaceful assembly and association. In addition, cultural rights that are contained in section 19 of the charter are protected through provisions in the Bail Act which require that an Aboriginal person's cultural background to be taken into account in making a bail decision. To the extent that these rights are engaged by this bill, I consider any impact to be a reasonable limit, balancing the needs for community safety and security.

The amendments achieve balance between the protection of the community and the rights and freedoms that are recognised under the charter.

I consider that the bill is compatible with the charter.

The Hon. Gayle Tierney, MP
Minister for Corrections