12 March 1991 - Current
Debate resumed from 13 December 2017; motion of Mr PAKULA (Attorney-General).
Mr PESUTTO (Hawthorn) (18:15:08) — I am pleased this evening to be able to rise and speak on the Bail Amendment (Stage Two) Bill 2017. I wish at the outset to circulate some amendments. Under standing orders I wish to advise the house of amendments to the Bail Amendment (Stage Two) Bill 2017 and request that they be circulated.
Opposition amendments circulated by Mr PESUTTO (Hawthorn) under standing orders.
Mr PESUTTO — Here we are. We are nearly 14 months after the Bourke Street tragedy, one of the worst incidents that Australians, in particular Melburnians, have ever suffered. We on this side of the house thought that after the gravity of such an incident bail changes would have been an urgent priority for this government, and you may recall that for weeks on end we urged the government to put bail reform at the top of its list of bills to bring into this house.
Here we are, 14 months later, and we have got the second of what have been two tranches of changes to the bail act, neither of which has commenced. Certainly this one is still going through the house — that is understandable — but the first tranche of amendments passed last year and has a default commencement date of 1 July of this year. You have to wonder why it has taken so many months to put the important matter of bail reform before this house. So I am moving an amendment that the commencement date for both bills be brought forward to 30 March of this year, and I do foreshadow that I will need to move a motion to extend the scope of this current bill to enable both amendments to be made. Of course the amendment to the commencement date of this bill follows from the amendments I have circulated, but the amendments in paragraph 3, which provide that the commencement date for the Bail Amendment (Stage One) Act 2017 be brought forward to 30 March 2018, will require me to move a motion that extends the scope of the bill.
I propose to move:
1. Clause 2, line 16, omit “1 October 2018” and insert “30 March 2018”.
2. Page 31, after line 17 insert the following heading—
“Part 5—Amendment of Bail Amendment (Stage One) Act 2017”.
3. Insert the following New Clause to follow clause 29 and the heading proposed by amendment number 2—
In section 2(2) of the Bail Amendment (Stage One) Act 2017, for “1 July 2018” substitute “30 March 2018”.'.
It has reached a point where you have the extraordinary intervention of a magistrate, Magistrate Ross Maxted, who last week expressed the frustration that I know he and his colleagues in the judiciary feel about the delays around bail. Magistrate Maxted actually expressed frustration because he felt that the person appearing before him in a bail matter should have been denied bail but under the laws as they are at the moment he had no choice. He fulminated against the delay of this government. We had the Attorney-General on the Friday of last week in an interview on 3AW radio with Neil Mitchell pushing back on the magistrate as if this delay was the magistrate's fault.
You have to ask what the government has been doing. Bourke Street was profound enough. It should not have needed any prodding from us or anyone else to amend the bail laws, and yet you have this extraordinary intervention by a member of the judiciary — fairly unprecedented, I have to say. The government has been quite willing to move with other bills in this house, and if we were to compare the types of bills it has placed priority on in this house over the last 14 months, I think we would find that most people would choose bail as a more urgent priority to address. Ever since Bourke Street we have seen example after example of people being granted bail when they should not be granted bail, so we express our extreme disappointment that the government has resisted at all events an earlier commencement of these reforms — and I say reforms advisedly because our overall position on the tranche that is before the house now and the first tranche of bail reforms is that we were happy to wave them through but we want to make it clear that we find the approach to bail reform that the government has adopted to be piecemeal.
When you look at the combined effect of stages 1 and 2 of the bail reform, the changes that were in the first bill and now this bill will not change things all that much. I am certain that these changes, when they finally do commence — whenever they commence — will not actually change the culture and will not change outcomes to the extent we need them to. The tests, although they have been clarified and reconfigured, are largely the same, and I will come to those in a moment.
I do give the government some limited credit for extending the scope of the reverse onus test to expand the range of offences that fall within the category of offences where the defendant must demonstrate either exceptional circumstances or, under this bill and the first bill, compelling reasons, but we feel those changes are piecemeal. We have committed publicly to rewriting the Bail Act 1977. It will be a real, genuine and comprehensive overhauling of bail in this state.
People should not have to live with the risk that this lottery of bail imposes on them whereby at any one time there are many people out on bail who should not be out on bail — and I have had that confirmed in briefings I have received on the operation of bail over the last 12 months. In fact there are so many people on bail it is difficult for law enforcement authorities to actually monitor them, and so we live, as I said, with a cruel lottery whereby people are living with exposure to people who have shown by their actions that they are quite capable of committing fairly serious offences in our community. That is not to say that we displace the presumption of innocence, but we know that too many people with very violent histories, including histories of not complying with their bail, are getting bail.
We are going to change that. We are going to let our reforms be driven determinately by three principles. There is going to be a strong and real presumption of remand for people who commit violent offences. We are going to reverse this government's changes that legalise the breaching of bail for people under 18, a change which we resisted as steadfastly as we could and which sent a signal to a young cohort of would-be offenders that you can breach your bail without committing an offence. Decriminalising that breaching of bail was one of the worst things this government could have done, and it did do it.
Thirdly, we will make sure that this revolving door of bail breaching will come to an end. If you breach your bail under our system, you will not get it again. It is going to be 'no prisoners' on this one for us as far as we are concerned. We are going to put community safety first. We are not going to allow people to continually seek and obtain bail, and make a mockery of our justice system. I can promise Victorian people that.
Turning to the bill, there are a number of issues I do want to address in the context of my opening remarks. The first thing I wanted to talk about was proposed section 3AAA, which deals with surrounding circumstances. On its face it is obvious enough, and as I said, we do not oppose these. But section 3AAA proposed in clause 5 of the bill sets out a whole range of things that bail decision-makers are to take into account — whether it is someone who is in a reverse onus situation, such as exceptional circumstances or compelling reasons, or even somebody who is facing the unacceptable risk test. Those surrounding circumstances set out at paragraphs (a) through to (h) include things like the nature and seriousness of the alleged offending; the strength of the prosecution case; the accused's criminal history; the extent to which the accused has complied with conditions of an earlier grant of bail; whether the accused was on bail for some other offence; the accused's personal circumstances, associations, home environment and background; any special vulnerability of the accused; and the availability of treatment or bail support services.
There are a whole range of circumstances that go on to include any known view or likely view of an alleged victim and the length of time the accused is likely to spend in custody if bail is refused, bearing in mind — I will just stop on that point — if you weaken your sentencing laws, then people are less likely to serve time in a custodial setting and can therefore more easily argue that they should be entitled to bail. That has an important consequence for our system. It also includes in paragraph (m):
whether the accused has publicly expressed support for a terrorist act or a terrorist organisation …
I raise those examples of what is in the surrounding circumstances because when you go to clause 7 of the bill, which deals with the reconfigured test for bail, we come to surrounding circumstances. I should first point out that in coming to those reconfigured tests, there are diagrams in clause 6 of the bill which set out the way the tests are to be applied. For example, for somebody who is accused of a schedule 1 offence, such as murder or something like that, there will be a presumption against bail. They will have to show exceptional circumstances for bail being granted, and the bail decision-maker has to take into account surrounding circumstances. That is mirrored in the case of schedule 2 offences essentially. You have an unacceptable risk test which imposes on the prosecution an onus to show that the person constitutes an unacceptable risk.
The reason I go through these is that, even in the case of schedule 1 and 2 offences where the government boasts that there will be exceptional circumstances and compelling reasons that an accused will have to overcome, the bail decision-maker will be still be entitled to look at the surrounding circumstances. The problem we have with the way the government has framed surrounding circumstances is there is no greater or lesser weight on any factors that relate to community safety or any factors that relate to the accused's prior offending, whether on bail or in other circumstances. That is very different to the approach we want to take in terms of bail reform.
We want community safety, prior offending while on bail and non-compliance with bail conditions to be elevated in the range of factors. In the surrounding circumstances, all these factors are in the mix. There is no guidance in the definition of surrounding circumstances as to how important one factor is over another. The government will say, I expect, that the articulation of overall principles in the act and in a couple of other sections will condition the way bail decision-makers approach their task. I hope they do, but there is no guarantee that they will. That is the problem we have with that.
Although the government is saying that these reconfigured tests for the granting of bail will toughen up the system, and they may in a piecemeal fashion, they are not going to constitute the cultural and legal changes that we need if we really want to start putting community safety first. Even in the case of the unacceptable risk test in proposed section 4E, all that the government has done in relation to community safety is to reorder the list of factors stipulated in paragraph (a) of proposed section 4E(1), where it talks about the risk that the accused would, if released on bail, endanger the safety of any person, commit an offence while on bail, interfere with a witness or fail to surrender himself or herself into custody. Those factors are being reordered, but there is no real change in emphasis in a substantive way that follows from the government's changes. We will not oppose these because they are likely to make a fairly modest and underwhelming improvement to what is in the Bail Act 1977 at the moment, but nobody should be under any misapprehension that this constitutes real bail reform.
I want to turn to one of the key features of this second tranche of bail reform, which relates to police remand. Police have said to me and many people have said to me over the last couple of years that police remand would actually assist police in circumstances where it might be very late in the evening or very early in the morning, and there is no access to a court or a bail justice or no ready access to one. It would be easier, it has been put to me, if police were able to remand someone for a reasonable period so that the person can be brought before a court or bail justice at the earliest opportunity after the expiration of that period. That all makes sense, and to that extent we do not oppose what the government is proposing in clause 14, which relates to police remand. But how much will it change the system is the question.
The first thing to note about proposed section 10AA, which relates to police remand, is that it only applies to schedule 1 offences. Schedule 1 offences are defined to include some schedule 2 offences, but that still leaves a whole range of very violent offences for which police will not be able to remand someone. That is something that has not been noted in the public debate, and I can understand well why the government has not publicly acknowledged that, because when you look at that and the operation of schedule 1, even with the definition that incorporates some schedule 2 offences, that is actually quite narrow.
There is also another interesting implication about what the government is proposing in relation to police remand. It does not apply to an arrested person who is a child, a vulnerable adult, an Aboriginal person or a person arrested on an infringement warrant issued under the Infringements Act 2006. We could have a debate around whether in every circumstance each one of those categories should be excluded, but let us put that to one side, because we are not going to oppose that section.
What I do point out is that there is a real possibility that you will have quite a large number of disputes between arrested persons and their lawyers or representatives and Victoria Police, because of the question of who decides who is vulnerable. Whilst ostensibly the bill purports to place that in the hands of an appropriate officer of Victoria Police, I can see ample opportunity for fairly vexed disputes between the accused and their representatives and the police over whether somebody is a vulnerable adult, whether somebody is Indigenous or any other circumstance that can arise under these scenarios. The bill is not clear on how that will ultimately be resolved. It does say in the bill that police will have those powers, but I am not completely confident, I have to confess, that this is not ripe for real dispute and uncertainty. It may mean that the police will err and overcorrect on this and perhaps risk defeating some of the purposes of this bill.
I also note that it will leave bail justices with a large number of cases to contend with, but in particular they will be dealing with the more acute cases, where you have children, vulnerable adults, Indigenous or those arrested under infringement warrants. Do they have the training, skills and support to be able to do that? I say that as somebody who over the last three years has met and spoken to many bail justices who feel let down by this government. I do not know why this government has it in for bail justices, but I can tell you that just about every bail justice I speak to does not feel that they have the support of this government. It may well be that this government just has it in for the volunteer ethic — that everything has to be bureaucratised or professionalised to the point where we do not have volunteers, whether it is the Country Fire Authority, whether it is the State Emergency Service, whether it is justices of the peace, whether it is bail justices.
These are people, let us remember, who will get a call at 3 in the morning and jump in a car and drive 150 kilometres or more and back to deal with a bail matter. These are the sort of people we want to have serving our community. Why would we want to make it harder for them? That is the kind of salt-of-the-earth ethic that we want to promote and exalt in our community, and yet we make it harder for them, it seems. They certainly feel that this government does not have their back on this. What we know from this bill is that they are going to be left with the most acute cases and that it seems that the introduction of police remand is not going to be the profound solution that this government has professed it to be.
I do want to talk about other clauses as well. I think it is important, and to this extent, I do welcome that clause 17 provides that bail decision-makers who grant bail for a person accused of a schedule 2 offence — they are still very serious offences; it could be manslaughter or child homicide — must provide a statement of reasons for granting bail. I think that will be a salutary change to the system. I think when decision-makers generally are required to furnish written reasons for something, even if they are not detailed reasons, it improves the quality of decision-making. It will certainly place on all bail decision-makers that onus we want in the case of bail, because I can readily imagine that people who are making decisions on bail and who are confronted with some evidence or submissions that a person represents a real risk will not be able to easily dismiss that if they have to commit their reasons to writing. I think that is very important. We welcome that change that is being made.
In relation to bail for an accused who is already on two undertakings of bail, we do not oppose what the government is proposing there — that is, a person who breaches bail having been given bail three times must be effectively brought before a court if they are to seek bail again. I just point out that this is one of the things that is at the heart of our policy on bail reform. We are sick and tired, and I think Victorians are sick and tired, of seeing people get bail, breach it and continue to get bail. That just has to stop. There have to be some consequences for people who breach their bail.
We will not oppose this change, but we think it is, in the words I used before, piecemeal and likely to be ineffective in really making the kind of cultural changes that we need to see if we want our community to be safer with a better bail system. I note the government is proposing to adopt in this bill recommendation 33 of Paul Coghlan's report to clarify that courts can grant or refuse bail to an accused who appears on summons. I do acknowledge and accept that there has been a great deal of uncertainty around what bail decision-makers can do in relation to people appearing on summons, and we think that that provision is appropriate.
I also note that the government's youth justice amendments are intended to deliver some technical changes to support its Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017. I can understand why the government is not conceding that it missed a few things when it brought in that bill and it needs to tidy up the work around the bill. We will not stand in the way of that. We only ask that the government gets its house in order to make sure that when it passes these bills they are in a state ready to be implemented.
I go back to my amendments. They are very simple, and I say to the government: do you think that there is any more urgent a matter than bail reform? I expect that the government will say, 'Our agencies need time to make the changes necessary to adapt to the new bail system'. I doubt that very much. In fact 'doubt' is a word I use charitably.
These two tranches — the first tranche of bail reforms and this — will not change the bail system in the way we think it should. As I said, it is piecemeal, so we are not talking about a whole new system of bail under what the government is proposing. It is a matter of great curiosity as to why agencies need so long to adjust to these changes. They are really a reformulation of what is already there, and as I have pointed out, a number of the sections actually just reorder what is there. So I cannot understand why this bill has a default commencement date of 1 October. I read in some media that the Attorney-General has said he is aiming for an April start date; 30 March is not that much of a stretch beyond that.
I heard him say on radio last Friday that 1 July looked like a good date. Those were not his words, but to paraphrase he said 1 July would be the date for both bills. But even that is well into the future, and we cannot understand why, when we look at the totality of all of these changes, the government needs so much time. I wish I could give the government some marks for what it has done, but on delay I give the government zero out of 10. Do the substantive changes not only in this bill but in the first tranche of bail changes go far enough? Not nearly.
I finish by reminding Victorians that if you want real bail reform, you have to look to the Leader of the Opposition and the Liberal-Nationals because we are the only team that will deliver an overhaul of the bail system. If you want more of the same — and sadly that is what this bill and the first tranche is going to deliver — then the Premier and his team will give Victorians more of the same. But they will continue to live with the risk that people will be granted bail and continue to breach bail. On that note I conclude my contribution.