Bail

Bail Amendment (Stage Two) Bill 2017

07 February 2018


It is an honour to rise today to speak on the Bail Amendment (Stage Two) Bill 2017. The history of this bill is well-known. The Bourke Street tragedy in January last year will possibly go down in Victoria's history as a critical moment that has shaped our state, unfortunately for the worst. The government announced their review of the bail system following that event where six people died and 37 people were injured. That awful event that took place last year was made even more tragic by the fact that the alleged killer, Dimitrious Gargasoulas, had been granted bail against the advice of Victoria Police just five days before the attack. I think most people would acknowledge that it is tragic that it takes an event like that for the government to act on the concerns that Victorians have about bail.

In the wake of the Bourke Street tragedy, the government appointed the Honourable Paul Coghlan to undertake a review of the bail system. Mr Coghlan was asked to consider seven questions under the terms of reference for the review. Among other things, he was asked to consider how section 4 of the Bail Act 1977 would achieve a balance between the protection of the community and the presumption of innocence, which has been discussed at length during the course of this debate, and also whether additional offences should be added to the list of offences which place an accused person into the show cause or exceptional circumstances categories.

The second and final report was handed to the government on 1 May 2017, but the bill before the house today makes changes to implement the remaining recommendations from the first Coghlan report after the government introduced a first tranche of legislation. I would point out that whilst the government says that it has made great reforms to the bail system, in fact the legislation that was passed by the house last year — the first tranche of legislation — still has not been implemented and will not come into effect until later this year, as the shadow Attorney-General has pointed out on numerous occasions.

Turning to the main provisions of this bill, clause 5 requires bail decision-makers to consider the concept of surrounding circumstances, including the seriousness of the offence, the accused's criminal history and whether the accused was on bail or parole. Clause 4 defines 'vulnerable adult' as a person aged 18 years or more who has a cognitive, physical or mental health impairment that causes them to have difficulty in understanding their rights or making or communicating a decision. Clause 7 replaces existing tests for bail with new, unacceptable risk, show compelling reasons and show exceptional circumstances tests.

Clause 14 allows police to remand a person in custody for up to 48 hours until a court is available, except for children, Aboriginal persons and vulnerable adults. Clause 18 allows courts to grant or refuse bail for accused persons appearing on summons or application by the prosecution or on their own motion. Clause 20 provides that only a court may grant bail to a person accused of a schedule 2 offence, other than lower level schedule 2 offences, who is already on two or more bail undertakings. It does not apply to children, Aboriginal persons or vulnerable adults. Clause 29 creates a presumption of culmination in relation to a period of detention imposed for escape from or property damage to a youth justice facility, which of course we have seen a great deal of in the last few months.

Despite these changes the opposition is concerned that the government's approach is still incremental. We believe that community safety must come first, and the government's changes fall well short of that. As I mentioned before, it took far too long to achieve even these changes. The government has had almost four years now to change the Bail Act and to implement the reforms that Victorians across the community have been calling for. If we look at the government's track record, it is evident that it simply has not been a priority for it. I know this is causing great pain to the Attorney-General, who is sitting at the table listening to the debate, but that is the truth and that is the perception among the wider Victorian community who are judging this government harshly for their failure to respond to community concerns.

Reform of the bail system should have been a top priority for the government, not just based on community perceptions but also based on evidence. Back in September last year the Sentencing Advisory Council released a report which showed that the number of offences related to criminal breaches of bail, sentencing orders and parole have almost doubled since the Premier was elected. As the shadow Attorney-General pointed out at the time, that means that one in 10 criminals sentenced in Victorian courts are now the result of convicted and alleged offenders committing further criminal offences or seriously breaching conditions that are meant to keep the community safe.

When the Coghlan review was first announced, I note that the government said that it would introduce the necessary legislation to make changes to the bail system in the same year, which was of course last year. The fact that we are debating this bill in 2018 reflects the lack of attention to this issue shown by the government and also poor management of the government business program by the Leader of the House and the chaos that has pervaded the house in the last several years under her management.

We called on the Premier to act very quickly after the Bourke Street tragedy. The Leader of the Opposition and the shadow Attorney-General outlined a very clear set of principles that we believed the government needed to adopt, and we urged the government to prioritise those and make them matters of urgency. The first of those three principles was that the presumption of remand for those charged with violent offences should be introduced. We believe people who are accused of violent offences should not simply be able to walk back out onto our streets. The second principle was that we wanted the government to amend the act to introduce a 'one strike and you're out' policy for anyone who breached bail. The third principle was that there should be a reinstatement of the offence of breaching bail by juveniles, which of course the Andrews government changed back in 2016, significantly weakening our bail system.

We asked the government to introduce a system that would see no more second chances and no more excuses. We believe that that is what Victorians are asking for. They have been asking for that for years. They were asking for that before the Bourke Street events in 2017. We have also outlined our plan to rewrite the Bail Act 1977. I note that that was one of the points that Justice Coghlan made in his review. He did note at the time that it was outside the terms of reference that the government had given him but that he believed it was important to getting bail right and getting the balance of bail right in this state, and that is a recommendation made by Justice Coghlan which has not been picked up by the government.

I think there is a perception among those on the opposite side that the issues around bail, the issues around law and order that we are seeing in this state, are a media beat-up and that the media are driving an agenda that is against the government, and I have to say that I would urge those on the opposite side to pause and listen to community sentiment, to look at the facts and examine the statistics, because I think they would see that this is not a media beat-up. The crime statistics reflect that — the crime statistics in my own area. Even in country Victoria we are seeing drastic and extreme increases in crime. In Benalla when the last crime statistics came out we saw that since this government came to power there has been a 10.9 per cent increase in crime. In Mitchell it has been 42.9 per cent and in Strathbogie 26.5 per cent. These are really serious and concerning increases, and the government needs to act.

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