Hansard debates

Jacinta ALLAN (Bendigo East – Premier) (12:09): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Bail Amendment (Tough Bail) Bill 2025:

In my opinion, the Bail Amendment (Tough Bail) Bill 2025, as introduced to the Legislative Assembly, 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 (Tough Bail) Bill 2025 (the Bill) is to improve community safety and strengthen consequences for alleged offenders and repeat alleged offenders accused of serious and high-harm offending, as well as certain types of alleged repeat criminal conduct driving community concern.

The Bill will amend the Bail Act 1977 (the Bail Act) and the Summary Offences Act (Summary Offences Act) to –

• Introduce two bail offences – ‘commit an indictable offence while on bail’ for inclusion in the Bail Act and ‘contravene conduct condition of bail’ for inclusion in the Summary Offences Act;

• Incorporate offences into Schedule 1 that were previously in Schedule 2, to ensure people charged with the following offences must satisfy a bail decision maker that ‘exceptional circumstances’ exist to justify the grant of bail:

• Armed robbery;

• Aggravated burglary;

• Home invasion;

• Carjacking;

• Incorporate additional offences into Schedule 2, to ensure people charged with the following offences must satisfy a bail decision maker that a ‘compelling reason’ exists to justify the grant of bail

• Serious firearms offences;

• Serious arson;

• Committing an offence involving controlled weapons (including machete violence), prohibited weapons and offensive weapons;

• Motor vehicle theft, where charged in combination with:

• Reckless conduct endangering life or persons;

• Failure to comply with a direction to stop; or

• Possession of a prohibited or controlled weapon in the course of the theft of the motor vehicle;

• Amend the Guiding Principles of the Bail Act to recognise the overarching importance of maximising the safety of the community and persons affected by crime to the greatest extent possible;

• Amend the child-specific bail considerations in section 3B to omit reference to remand of children being a last resort;

• Streamline bail processes to enable police officers to bring a person on bail directly to court during ordinary sitting hours, rather than through a bail justice in all cases, where the person has been arrested for breach or likely breach of bail; and

• Delay the commencement of the statutory review of the Bail Act from 2026 to 2027 and expand the scope of the review to include the reforms in this Bill.

Human Rights Issues

As discussed in this statement, the operation of the Bail Act does limit Charter rights, and will continue to do so after these reforms, but in my opinion, these are reasonable limitations that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom taking into account relevant factors as outlined in section 7(2) of the Charter.

The human rights protected by the Charter that are relevant to the Bill and the operation of the Bail Act are:

• Right to recognition and equality before the law (section 8);

• Protection of families and children (section 17);

• Right to liberty and security of person (section 21);

• Children in the criminal process (sections 23 and 25(3)); and

• Right to be presumed innocent until proved guilty according to law (section 25(1)).

While matters relating to remand principally engage the right to liberty, the very nature of being remanded in custody necessarily involves the limitation of other rights, including freedom of movement (section 12), freedom of expression (section 15) and the right to peaceful assembly and freedom of association (section ‍16). This is the result of the deprivation of liberty and the powers held by police officers and officers in charge of custodial facilities that are necessary to maintain good order and security of the facilities and the welfare of detained persons. The family unit will also be affected when a child, parent or guardian is remanded, as this interferes with the privacy and protection of family and consequently engages both section 13 and section ‍17(1). Therefore, the discussion of the impact on the right to liberty and security of the person in this statement also encompasses the rights that are necessarily affected by deprivation of liberty.

Recognition and equality before the law

Section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. The purpose of the right to equality is to ensure that all laws and policies are applied equally, without a discriminatory effect.

Section 3(1) of the Charter adopts the definition of ‘discrimination’ in the Equal Opportunity Act 2010, which includes both direct and indirect discrimination on the basis of a protected attribute, including race, sex, disability and age. Under section 9 of that Act, indirect discrimination occurs where a person imposes a requirement, condition or practice that is unreasonable and has, or is likely to have, the effect of disadvantaging persons with a protected attribute.

Protection of families and children

Section 17(1) of the Charter recognises that families are the fundamental group unit of society and are entitled to be protected by society and the State. This right is related to section 13(a) of the Charter, which relevantly provides that every person has the right not to be subject to unlawful or arbitrary interferences with their family.

Right to liberty and security of the person

Section 21(1) of the Charter protects the right of every person to liberty and security. Section 21(3) provides that a person must not be deprived of their liberty except on grounds, and in accordance with procedures, established by law. Section 21(2) provides that a person must not be subject to arbitrary detention. Together, the effect of sub-sections 21(2) and (3) is that the right to liberty may legitimately be constrained only in circumstances where the deprivation of liberty by detention is both lawful, in that it is specifically authorised by law, and not arbitrary. In order for an interference not to be arbitrary, it must be predictable, just, and reasonable in the sense of being proportionate to a legitimate aim.

Rights of children in the criminal process

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This recognises the particular vulnerability of children due to their age and confers additional rights on them. Section 23 of the Charter builds on the rights of the child protected by section 17(2) by specifying additional protections that are necessary for the humane treatment of a child who is detained or involved in a criminal process. Finally, section 25(3) provides that a child charged with a criminal offence has the right to a procedure that takes account of that child’s age and the desirability of promoting the child’s rehabilitation. This recognises the need for special procedures for children charged with criminal offences.

Right to be presumed innocent until proved guilty according to law

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Amending schedules 1 and 2 of the Bail Act

A person charged with an offence listed in Schedule 1 or Schedule 2 of the Bail Act faces a reverse-onus bail test – meaning they must establish either ‘exceptional circumstances’ (Schedule 1) or a ‘compelling reason’ (Schedule 2) to justify the granting of bail.

The Bill will move certain serious offences currently in Schedule 2 to Schedule 1, namely: armed robbery; aggravated burglary; home invasion; and carjacking. This will mean that those charged with these offences are always subject to the ‘exceptional circumstances’ bail test.

The Bill also expands the list of offences set out in Schedule 2 of the Bail Act to include serious firearms offences, serious arson involving endangerment of life, and committing an indictable offence involving a controlled or prohibited weapon (in addition to the existing item regarding indictable offending involving firearms, offensive weapons or explosives). This will mean that those charged with these offences are always subject to the ‘compelling reasons’ bail test.

In addition, the Bill also expands Schedule 2 to include circumstances where theft of motor vehicle is charged alongside specified offences that endanger public safety (reckless conduct endangering life or persons, failure to stop when directed, or possession of a prohibited or controlled weapon).

Right to liberty and security of a person

Expanding the application of reverse onus bail tests engages the right to liberty and security, because a reverse onus bail test increases the likelihood that the accused will be remanded in custody. However, I consider the amendments are justified as they give effect to a clear purpose of the Bail Act – namely, striking a balance between the importance of maximising the safety of the community and victims of crime, with the right to liberty for persons accused of a crime.

The right to individual liberty for persons alleged to have committed serious offences who have not yet had their allegations determined by a court needs to be balanced with the community’s right to safety and security, which includes protection from being subject to criminal offending. A balance must be struck between these competing priorities each time a bail decision is made.

It is my opinion that any limitation on the accused’s right to liberty remains sufficiently targeted and justified based on the specified offending. Reverse-onus tests will remain applicable only to those who are charged with serious offences which by their very nature pose significant risk and concern to the public.

This is particularly applicable to the offences being moved from Schedule 2 to Schedule 1. The evidence demonstrates that these offences are allegedly committed while on bail at a higher rate than the average for other Schedule 2 offences, consistent with broader trends towards repeat offending by a defined group.

The offences added to Schedule 2 also pose elevated risk to the community and have been identified by Victoria Police as posing an inherent threat of injury or other safety risks. Firearms offences and offences involving weapons carry an inherent community safety risk, as does criminal damage by way of arson with intent to endanger life.

Similarly, the co-occurring offences included in Schedule 2 have been specifically identified because of the significant community safety risks involved when these dangerous behaviours are combined. Individuals in a stolen motor vehicle are often detected because of their erratic driving behaviour. Where police attempt to intervene or are seen by the occupant, there will typically be a failure to stop and an increase in dangerous driving behaviour. It may not be operationally safe for police to engage in pursuit of such vehicles, which means that the existing offences in Schedule 2 may not apply (such as the offence of dangerous or negligent driving while pursued by police), meaning tougher bail tests are not currently applied.

Right to be presumed innocent

Bail is an ancillary criminal process and therefore is not directly relevant to a determination of guilt. However, the presumption of bail in the Bail Act reflects section 25(1) of the Charter by supporting an accused person to remain in the community pending the determination of charges. Therefore, the presumption of innocence may be described as the starting point for bail applications.

The inclusion of additional offences in Schedules 1 and 2 of the Bail Act will expose people accused of these offences to either a new or more stringent reverse-onus test, therefore displacing the presumption in favour of bail by reversing the onus-of-proof from the prosecution to the accused. However, it is my opinion that any consequent limitation on the presumption of innocence is justified given the inherent seriousness of the offences for inclusion in Schedules 1 and 2, and the significant risk that these offences pose to community safety as set out above. Furthermore, the Bill does not change the existing guiding principle in section 1B of the Bail Act which recognises the importance of the presumption of innocence (together with the right to liberty). Bail decision makers will continue to have regard to the significance of the presumption of innocence when determining bail applications.

Rights of children in the criminal process

The expansion of items in both Schedule 1 and 2 of the Act is equally applicable to adult and child accused, but there may be an indirect interaction between these reforms and the rights of children in the criminal process in practice. The evidence suggests that recent increases in some of the affected offences have been disproportionately driven by an escalation in the rate of offending amongst older children, despite the number of individual alleged child offenders remaining relatively stable.

This cohort of child accused is therefore likely to be particularly (though not uniquely) impacted by the addition of Schedule 1 and 2 offences. For example, when applying for bail a child will now be required to show ‘exceptional circumstances’ if charged with aggravated burglary, or to show ‘compelling reasons’ if found driving a stolen vehicle and engaging in reckless conduct (driving) that endangers persons. The impacts of these reverse-onus tests on accused children are mitigated by section 3B of the Act, which includes mandatory considerations relevant to the unique vulnerabilities of children. This means that while strict bail tests will be imposed on children, they remain more likely than adults to satisfy those tests.

Introduction of bail offences

The Bail Act currently provides that it is an offence to fail to answer bail, and to commit an offence set out in Schedules 1 or 2 to the Bail Act while on bail. The Bill inserts two additional offences: committing an indictable offence whilst on bail; and contravention of certain conduct conditions of bail undertakings. The existing offence of committing a Schedule 1 or 2 offence while on bail (which commenced in December 2024) will be repealed, as the reintroduction of the offence to commit an indictable offence while on bail captures a broader range of conduct and now makes this offence superfluous.

The offence of ‘commit an indictable offence while on bail’ will apply to both adults and children and will capture indictable offending on bail. This offence will typically be charged alongside the substantive offence which the person is accused of, therefore imposing an additional consequence for those who reoffend on bail.

The offence of ‘contravening certain conduct conditions of bail’ will apply to adults only and will capture breaches of bail conditions that are committed without reasonable excuse. This offence will not apply to a condition that requires the accused to attend and participate in bail support services. This offence will impose an additional consequence for those who do not comply with their bail conditions and will also be punishable via infringement notice. A conviction in relation to this offence will also provide a record of bail non-compliance that is easily accessible for future bail decisions in relation to that person.

Right to liberty and security of a person

Although the introduction of these offences does not expand the scope of revocation nor oblige bail decision makers to consider factors that they are not already considering, the existence of an alleged bail offence may strengthen the prosecution’s argument for remand or encourage more revocation applications to be made. This will potentially result in more people being remanded in custody, engaging the right to liberty.

This limitation on the right to liberty is justified in the case of an accused who offends while on bail (and, in the case of an adult accused, breaches a condition of bail). These offences recognise that a person whose liberty is subject to bail conditions who is charged with further offending presents a higher level of risk to the community, which may then be relevant to the court’s consideration of an application for bail or the revocation of bail. This is a reasonable and proportionate response to the risk of harm posed by a person who engages in further offending on bail.

Right to recognition and equality before the law

The introduction of these offences may engage with the right to equality before the law due to the potential for elevated rates of offending on bail and breaches of bail conditions by those experiencing disadvantage, vulnerability or who are otherwise over-represented in the criminal justice system. Historically, bail offences have had a disproportionate impact on Aboriginal people, women, children and people experiencing disadvantage due to the correlation between socio-economic drivers and repeat offending on bail or bail breaches.

To the extent that the right to equality before the law is limited by the potential operation of the amendments, the limitation is justified under section 7(2) of the Charter, as it is proportionate having regard to the importance of deterring those on bail from offending or breaching their bail conditions. The amendments provide clear incentive to comply with bail conditions by imposing consequences for breaching bail, without applying reverse onus bail tests to these bail offences, which has previously been a key factor in elevated remand rates for minor repeat offending. The offences will also be summary offences with relatively low maximum penalties.

Sections 3A and 3B of the Bail Act set out additional factors which the bail decision maker must consider when the applicant for bail is an Aboriginal person or a child respectively. These mandatory considerations are expected to further mitigate against the risk of the new offences resulting in disproportionate remand rates for these cohorts.

The Bill broadens the scope of the review required under section 32C of the Bail Act to include a review of the proposed amendments in the Bill. This will provide an opportunity to assess the impact of these offences and identify any disproportionate impacts on specific cohorts.

Rights of children in the criminal process

Only the offence of ‘commit indictable offence while on bail’ will apply to children.

Evidence suggests that applying a bail offence to children in addition to charges for the offending conduct is less likely to deter offending than in the case of adults. Further, it is possible that bail offences may contribute to drawing children further into the justice system, which itself can have a criminogenic effect.

To the extent that the rights of children in the criminal process are limited by the potential operation of the amendments, the limitation is justified under section 7(2) of the Charter, as it is proportionate having regard to the risk that an accused child poses to the safety and security of the community, and the importance of responding to a child who offends on bail or breaches their bail conditions. The additional factors required to be considered by a bail decision maker under section 3B provide for bail determinations to take account of the special needs of children charged with criminal offences.

Amending the Guiding Principles of the Bail Act

This Bill amends the Guiding Principles of the Bail Act by substituting the guiding principle in subsection ‍1B(1)(a) of the Bail Act. The amended guiding principle recognises the overarching importance of maximising the safety of the community and persons affected by crime to the greatest extent possible.

Protection of families and children

The amendment promotes the recognition and protection of families, by sending a clear message to the public that government is committed to protecting community safety and persons affected by crime. This is a clear and unambiguous signal that community safety is an overarching principle for bail decision-making for offenders of all ages. Families and children are included in the community and are also persons affected by crime and these provisions will operate to promote this right.

Removal of phrase specifying that remand is a last resort for an accused child

Section 3B of the Bail Act outlines specific considerations that bail decision makers must consider when determining bail for a child. The Bill amends the minimum intervention consideration by removing the requirement that remand of a child is a last resort.

This amendment is intended to remove barriers to the use of remand where custody is the minimum intervention required in the circumstances, and remove the risk that bail decision makers may interpret the ‘last resort’ consideration as requiring that all other options – such as continuous grants of bail with increasingly strict bail conditions - are exhausted before remand can be considered, even when the alleged re-offending is particularly dangerous to the community.

The Bill maintains the remaining child-specific considerations in section 3B of the Bail Act that account for the special needs and vulnerability of children and the detrimental impacts of remand for children. The need to impose on a child the ‘minimum intervention required in the circumstances’ will also remain. These remaining considerations, which are all mandatory considerations to take account of a child’s individual circumstances, ameliorate the likely impact of this reform on the exercise by bail decision-makers of their discretion to consider alternatives to detention.

Rights of children in the criminal process

The rights of children in the criminal process must be balanced with the community’s right to safety and security, including protection for criminal offending. While the removal of the ‘last resort’ phrasing in section ‍3B of the Bail Act may limit an accused child’s rights in the criminal process, I consider the amendment is justified as it gives effect to the Bail Act’s purpose of balancing the rights of children with the objective of maximising the safety of the community and victims of crime. The limitation on the rights of children in the criminal process is appropriately targeted, as it removes a consideration from the bail decision process that may result in continued grants of bail even where the alleged re-offending is particularly dangerous to the community, while retaining the requirement that the response to a child’s alleged offending is the minimum intervention required.

Right to liberty and security of a person

Removal of the ‘last resort’ element also engages the right to liberty and security, because it increases the likelihood an accused child will be remanded in custody. However, I consider the amendment is justified as it gives effect to a clear purpose of the Bail Act, ensuring that the importance of maximising the safety of the community and victims of crime is balanced with the right to liberty for children accused of a crime.

Allowing police officers to bring a person arrested without warrant directly to court

The Bail Act allows police to arrest a person on bail without a warrant if they reasonably believe the person has breached a bail condition. Currently, police must take the person to a bail justice as soon as possible, even during court sitting hours, unless a limited exception applies. The Bill will ensure people arrested without a warrant for breaching bail will be brought before a court where available, while maintaining the role of Bail Justices when arrests are made outside court hours.

Right to liberty and security of a person

The Bill promotes the right to liberty of alleged offenders by streamlining processes to prevent people spending unnecessary time in custody. The current requirement to take a person before a bail justice even where a court is available can result in people spending unnecessary time in custody if a bail justice (who ordinarily work outside of court hours) is not available during the day, as police cannot take them directly to court. In this way, this reform will reduce instances of accused persons being subject to arbitrary detention while awaiting a Bail Justice, as the Bill will enable these persons to be presented directly to a court.

Conclusion

In my opinion the Bill does not unreasonably limit any Charter rights. The amendments to the Bail Act achieve a proportionate balance between the rights protected under the Charter and the protection of the community.

I consider the Bill to be compatible with the Charter.

The Hon. Sonya Kilkenny MP

Attorney-General

Minister for Planning