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Legislative Assembly
Bail Amendment (Stage One) Bill 2017

06 June 2017
Second reading


Debate resumed from 25 May; motion of Mr PAKULA (Attorney-General).

Mr PESUTTO (Hawthorn) — I am pleased to be able to rise tonight and speak on the Bail Amendment (Stage One) Bill 2017. I can advise the house at the outset that the opposition parties will not be opposing this bill, but I will certainly be outlining a number of concerns about this bill as I proceed. This bill obviously, as we will all recall, followed the tragic events on Bourke Street that harrowing Friday, 20 January, earlier this year. Following that tragedy and the deep grieving that the state and our country experienced over the following days and weeks, the government announced that it would commission former Supreme Court judge and Director of Public Prosecutions Paul Coghlan to undertake a review into bail. He produced a two-part report, parts of which I will come to in the course of my remarks. This bill is intended to represent the first stage of the government's response to that report.

I have to say at the outset that we are very disappointed that the government has taken so long to bring what appears to be a very modest bill before the house to deal with a fairly comprehensive problem that has faced our community, as many Victorians will know, particularly acutely over the last 18 months to two years. We have been calling out and I have been calling out for the government to do something serious about profoundly changing our system of bail in Victoria to put community safety first. We have been running that campaign very strongly for two years or thereabouts, with strong public support because of course members of the Victorian community are seeing this for themselves. They are seeing the consequences of a weak bail system where repeat offenders are repeatedly securing bail when they should be on remand, if not behind bars.

We now see the government, perhaps five months after the Bourke Street tragedy, introducing a bill which effectively does not alter the substantive content of the tests involved in deciding whether bail will be granted or not. There are some measures that are small steps in the right direction, but this bill does not go nearly far enough in changing our bail system in the way it needs to be changed. While the government will say, 'Well, there are further changes to come', how long are they going to take? Victorians deserve to have a criminal justice system that puts their safety first, and yet we have a bill that is largely tinkering at the edges. Yes, it is making some definitional changes and adding some new offences to the reverse onus bail test — and I will come to those in a moment — but is this what we are getting after five months of urgent calls for profound bail reform? It is deeply disappointing.

We were very determined, in the days that followed the Bourke Street tragedy, to make clear what we would do in government. We understand that the legal framework and the culture around bail have to be turned on their heads if we are to seriously put community safety first. We announced a plan to overhaul our bail system in ways that would seriously implement a credible presumption of remand in cases of violence offences. We would institute a 'one strike and you're out' policy — if you breach the terms of your bail, the conditions of your bail, then you should not be able to get it in the future unless the most exceptional circumstances are satisfied, and they would be very strictly quarantined to, as I said, very exceptional circumstances. But if you continually breach the conditions of your bail, you would lose it in the future.

We also made it clear that we would reverse the changes that the government recklessly made in 2016 to effectively legalise the breaching of bail conditions by juvenile offenders, one of the worst things the government could have done. We were very clear in our policy. We knew then, as we know now, what needed to be done, and this bill sadly does not go anywhere near what needs to be done. We will not oppose it, as I said, because it is a very small step in the right direction, but it leaves Victorians wholly dissatisfied, I think, about what they are entitled to receive.

One of the key failures of this bill is that it does not in any way even purport to address the growing problem of reoffending by juvenile accused persons who continually breach the conditions of their bail. Just in the budget last month the government had to stump up some funds for a remand court. Why? Because remand numbers are going up — the very thing that we predicted.

If you legalise the breaching of bail by juvenile accused persons, what do you think they are going to do? If you remove the deterrent that is there to drive them towards complying with their bail conditions, they are going to breach their bail conditions. It is no surprise, and it is wholly consistent with the warnings we issued at the time that if you decriminalise the breaching of bail, that would be the result. Bear in mind that the previous coalition governments had seen this problem, and that is why the Baillieu and Napthine governments changed our law so that if you breached the terms of your bail without cause — and I stress those words 'without cause' — then you would be committing an offence. It was an important deterrent. This bill does not even try to deal with that problem. The government continues to have its head in the sand about the message that legalising the breach of bail sent to a whole cohort and generation of young offenders. That is deeply disappointing about this bill.

The other disappointing feature of this bill is that it is incremental — it goes nowhere near the cultural and legal change that we need, and the Coghlan report itself is the basis for that, and it is very much what the government itself wanted. On page 36 of the first report of the Coghlan recommendations, Mr Coghlan wrote this in paragraph 4.24:

I recommend that the current tests for bail be retained but redrafted in clearer terms. There should remain a general entitlement to bail, unless otherwise provided by the statutory tests.

He went on in paragraph 4.25 to say:

As explained below, I also recommend some minor changes to the unacceptable risk test, and the re-naming of the show cause test to a test that requires the accused to show 'good reason why bail should be granted'.

The report is fairly lengthy, but this just goes to show that the report itself is not calling for wholesale change. It is saying that the current test should be retained with some changes in nomenclature. That is not really going to produce the cultural and legal change that we are all looking for. The minister, the Attorney-General himself, acknowledged in his second-reading speech that this bill is only going so far. On page 3 of his second-reading speech he said:

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.

This bill is not dealing with the kernel of the problem, which is the tests themselves and how the tests are to be applied. On page 7 of his second-reading speech the Attorney-General said:

This second bill —

referring to whatever is to come in the future —

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.

What those two quotations should show everybody is that the government has come to this house with a modest bill that does not deal with the very thing Victorians are crying out for: substantive and profound changes to the tests around bail. It is like somebody has reached a deadline, has not produced what they were supposed to produce and is trying to make excuses for why their progress to date should quell any concerns about a lack of process. I think the government stands condemned, frankly, that nearly five months after the Bourke Street tragedy it has not brought in a bill that deals with the very problem that prompted the review in the first place.

The government's ill-preparedness for what is to come, if it does proceed with all this, was further illustrated in the recent Public Accounts and Estimates Committee (PAEC) hearings when the Attorney-General was asked by coalition members of that committee about the impacts of the changes that Mr Coghlan is making. I will come to those changes in a moment. It is clear that, as modest as they are, the changes which Mr Coghlan is recommending and which the government is accepting in this bill will increase remand numbers. Mr Coghlan makes that clear on page 3 of his second advice. In reference to the changes that are to be made he said:

… the issue is unlikely to be completely resolved, particularly as any reforms to the Bail Act 1977 … arising from this review are likely to increase the number of prisoners on remand.

What Mr Coghlan was talking about there was the impact, obviously, of these changes on the number of people in remand.

That was put to the Attorney-General at the PAEC hearing on 23 May. I want to take a few moments just to go through some of the questions that were put to the Attorney-General by the member for Mornington. On page 5 of the verified transcript the member for Mornington asks of the Attorney-General:

Can you indicate to the committee where in the budget papers there is a provision for the increase in remand numbers that is identified in the report?

Obviously the member for Mornington was talking about the impact of the Coghlan report and where in the budget papers one would find where the government has made provision for this. It is fair to say that the Attorney-General was sliding all over the road when trying to answer these questions. His first answer — or first series of answers — converged on the theme that there is already existing capacity in the system. On page 6 of the PAEC transcript he said:

There is additional capacity which will be freed up at the Melbourne Remand Centre when the works there are concluded later in the year. There is money in the budget, as I have indicated in my presentation, for CISP and for CROP, and if you look at the Coghlan review, if you look at the Luke Batty inquest, they are significant recommendations in regards to the use, particularly of CISP. There is the funding that has been allocated for the new youth justice facility in the City of Wyndham at Cherry Creek.

And so on, and so forth. The member for Mornington, following his line of inquiry, asks a further question:

So I take it from your commentary so far that while there is money in the budget from, as you said, a variety of things, none of it is new money linked directly to the outcomes of this review.

Again the Attorney-General was trying to seize upon what he identified as existing capacity in the system, saying:

We are keenly aware of that, and as I have indicated both in public commentary and that I repeat today, there is capacity coming online in the system, and if additional capacity is required, then it will be provided.

That is the whole point. The member for Mornington then goes on to ask:

We are now five months on from Bourke Street. We apparently do not have an allocation of funds in this year's budget to address the recommendations of the review. Are you saying, 'Trust us. We'll do it if we need to'? Surely the need is demonstrated. When is it going to be funded?

After some further exchanges, the Attorney-General said:

… I am indicating to you that a combination of things that are already in train and new funding that is provided in the budget will mean that we have capacity to deal with any … prisoners held on remand as a consequence of the changes that we will be making to the act.

The upshot of that exchange is that although this report will make changes to the Bail Act 1977 that will, on all counts, result in more remand numbers — there being no other changes to the scheme around bail — all that the Attorney-General can say is that the government will fund it if there is a need to. But there has been no attempt by the government in the lead-up to the budget to make some provision for the increase in remand numbers that will follow from that.

One other aspect I want to talk about before going to the bill is at the other end of the question of capacity. Mr Coghlan in his second advice refers to what he considers the need to free up capacity in the system by effectively removing a number of indictable and summary offences from the system of bail. I quote Mr Coghlan from page 4 of the second report:

The changes I recommend —

I will come to those in a moment —

should reduce the number of people on bail and therefore less warrants may issue as a result of failure to answer bail. Allowing some indictable offences to be dealt with in the absence of the accused should also reduce the number of warrants for cases in which a summons was issued.

If less warrants are issued, then less court time and police time will be taken to deal with those warrants, and less custodial places will be required. That should have some positive effect on the numbers in police cells.

So on the one hand we have Mr Coghlan saying, not unexpectedly, that changes in bail will increase remand numbers. That, I think, in all fairness we all have to accept. Although we differ on the extent of the changes that are required, it is clear that toughening up the bail system will see more people on remand certainly in the short term. Over the long term it should be the aspiration of any sensible government to lower rates of crime and reduce reoffending, but let us put that off to one side.

In order not to overburden the capacity of the system Mr Coghlan is suggesting that we effectively and partially decriminalise a number of offences. What Mr Coghlan is effectively recommending is that where a number of offences under the Summary Offences Act 1966 and under the Crimes Act 1958 are dealt with and often involve bail where people fail to show up to hearings they simply be dealt with on what would effectively be an administrative basis. A number of the offences which Mr Coghlan contemplates as part of this change to the freeing up of capacity involve potentially imprisonment terms of between six months and 12 months. What these changes would mean, were the government to accept them, is that these offences would simply be dealt with by way of a fine and that those who are subject to these offences and found guilty would not even be required to show up.

So effectively what is happening is that because there are a large number of people who ignore the requirements to attend proceedings and create the need for the issuing of warrants, the solution, it seems, according to the Coghlan report, is simply to reward that non-compliance by treating offences in effect as administrative in nature and to effectively in part decriminalise those offences because they would no longer require the attendance of the accused and could not entail an imprisonment term if the person were found guilty and the circumstances warranted it. They would simply be issued with a fine at the maximum. This was put to the Attorney-General at PAEC as a consequence of the Coghlan report, and I will just refer to that. The member for Mornington asks on page 7 of the PAEC transcript:

Attorney, Mr Coghlan suggests in his report that while, as we have agreed, the tougher bail tests will see more people remanded, he is also proposing the government should remove a range of less serious indictable and summary offences from the bail system altogether. Of course that will mean that a number of accused people will remain in the community rather than being remanded. Does the budget account for the effects of any changes that you will be making towards implementing this part of the report?

The Attorney-General responded to the member for Mornington's further inquiry of 'So can you tell us now what offences will no longer be subject to bail?' with:

Well, no, Mr Morris, because I just indicated that the government has not yet responded to that part of the report —

and that is true —

It is important for you to understand what Mr Coghlan was referring to. What Mr Coghlan indicated was that there are some very minor offences which at the moment are treated by charge and bail, and they are at the very petty end of the spectrum. But what happens as a result of — —

Then the member for Mornington interjected with a further question:

Would you consider the possession of illicit drugs to be part of that — consider that to be a petty charge?

The Attorney-General responded:

No, well, what happens, Mr Morris, is that sometimes in these cases people who are charged with minor offences for which they would never normally receive a sentence under conviction, because they are bailed and then may not respond or attend a hearing, are then in breach and then they are remanded. So you have got the system …

and so on and so forth. There was no satisfactory answer to the question of whether offences like the possession of illicit drugs will be decriminalised effectively by these changes. One suspects that the government is wanting to move down that path, but we will have to wait and see what changes are brought in in any further tranches of changes.

It is a matter of some concern, I have to say, and the government's equivocation on this is a little bit unsettling, because there are a number of offences both under the Summary Offences Act and in the range of indictable offences which are relatively serious, and were they to be in part decriminalised, that would represent a seriously counterproductive message to our community that some forms of serious wrongdoing will be treated with a slap on the wrist, and that cannot be good for our justice system. That is the background to this report.

When we are looking at the provisions that this bill will introduce, it is important to keep these following things in mind: what the bill does not deal with; the fact that the government has not considered what budget impacts will follow on from the changes that this bill will introduce; and that the government is totally either dissembling or flat-footed on the question of what Mr Coghlan's recommendations about partial decriminalisation will entail, what offences they will apply to and when it will happen.

Turning to the bill itself, I want to take some general comments. As I said, we are not opposing the bill, but I do want to note some concerns. The first concern is the commencement date. This bill is intended to commence on a date to be proclaimed, but if not, it will come into effect on 1 July 2018. I hope that does not mean that the government is going to drag the chain on this. It concerns me that the default commencement date is so far into the future. If the government thinks that it can pass this bill, tick a box and say to the public that it has dealt with the problem, it should think again. I will be watching closely as to when this bill will commence. The government should not take any comfort from the default commencement date being well over a year away.

The second matter I wanted to discuss is clause 3 of the bill, which deals with new sections 1A and 1B. New section 1B introduces new guiding principles, one of which is to maximise the safety of the community. Whilst that is important as a guiding principle, we are looking for something more than that, and the community is looking for something more than that. Community safety has to be a potent factor in every bail decision. With sentencing, we have been calling for community safety to be a mandatory consideration in sentencing, and we have said that of bail as well. It is not enough that community safety is just a guiding principle; it does need to be a discrete and very potent factor in every bail decision.

I turn to clause 5 of the bill, which talks about amendments to section 4(2) of the Bail Act 1977, which deals with exceptional circumstances. This clause will give effect to schedule 1, which contains the most serious forms of offences, and this is set out in clause 13 of the bill. As I said before, whilst we welcome the expansion of the range of offences that trigger the reverse onus test in the case of exceptional circumstances, if you do not deal with the application of the tests and the requirements of the tests, then that is hardly an improvement. If the same kinds of decisions are going to be made with a range of offences that is twice as large for the reverse onus test, that is not going to produce any differences, so I am concerned about that part of the bill and the absence of any stronger test.

I say the same thing about clause 5(8), which deals with changes to section 4(4) of the Bail Act, which talks about the schedule 2 offences. As we know, schedule 2 offences will involve a reverse onus under which the accused has to show a compelling reason for why their detention in custody is not justified. Again, if the tests are not dealt with and the formulation of those tests are not dealt with, then you are not going to see real changes to outcomes on the ground, and that is something of a very significant problem.

In terms of conduct conditions, yes, that will be an improvement. We are not convinced this goes far enough, but as I said at the outset, the consequences that flow from breaching bail conditions for both juvenile and adult offenders need to be serious. We have got to make sure that there is a change in culture so that, when people are rocking up to courts having breached the conditions of their bail, that really should be a disqualification unless the most exceptional circumstances apply in those cases.

Moving through the bill we note that in the case of schedule 1 offences the Supreme Court, Magistrates Court or County Court would be having to make decisions where bail is sought in respect of schedule 1 offences, and we think that is appropriate, so we welcome that.

Other than that, the changes to the Bail Act represent for us regrettably only a small step in the right direction. We are happy to support them, but again we think the government not only stands condemned for the delay in getting this bill to the house but stands condemned because, in bringing this bill, what is conspicuous about it is what it does not deal with.

We will await the government's further tranches of this legislation in the future. We hope and trust that they will bring before this house, not before too long, changes that will entail improvements to the culture and law around the granting of bail. So on that basis I conclude my remarks and confirm that we will not be opposing the bill.