This article was produced by the commission and appeared in the December 2007 issue of the Law Institute Journal.
The Victorian Law Reform Commission (VLRC) has recommended a complete rewrite of the Bail Act, including the removal of presumptions against bail, in its final report to government.
Few of the central ideas in VLRC projects receive unanimous agreement in submissions or at consultations, but in the recent review of the Bail Act everyone agreed the legislation needed to be rewritten.
A rewrite of the Act to transform the language into plain English and make its structure more logical is one of the first recommendations in the Review of the Bail Act: Final Report, which was tabled in Parliament on 10 October.
This also applies to the forms that are filled out by accused people and sureties.
Removing presumptions against bail
The report recommends the removal of reverse onus offences, and thus the end of the “show cause” and “exceptional circumstances” tests.
Reverse onus tests apply to a small number of offences that, although serious, comprise a minority of the overall number of cases before the courts. They include: murder and treason; arson causing death; serious drug offences; aggravated burglary; and indictable offences when a weapon is used.
Throughout our review we heard that the arguments put forward to overcome the unacceptable risk test are also used to address the show cause and exceptional circumstances tests.
Decision makers told us that the ultimate issue for them is whether the accused poses an unacceptable risk. Our recommendation to remove the reverse onus tests means that all bail decisions will be made on this basis.
It will also end confusion about the necessity of following the “two-step” process of applying first the show cause or exceptional circumstances tests, and then the unacceptable risk test. Court of Appeal President, Justice Maxwell, questioned the necessity of the process in 2005.
We also recommend that decision makers be able to take into account the conditions that may be imposed on accused people when deciding if they would pose an unacceptable risk if bailed. This overcomes disagreement among decision makers about whether this is allowed under the current Act.
Police and bail
The initial decision about whether to charge an accused or issue a summons is made by police. Currently, about half of accused people are charged and half receive a summons. This sometimes results in people accused of minor offences being charged and having to answer bail, while people accused of serious offences receive a summons. We have recommended that Victoria Police develops guidelines to help officers make this decision.
It is common for accused people to receive bail when they are already on bail for another offence. We recommend that Victoria Police’s database flag a person’s bail status so police always check whether accused people are already on bail if they are facing another charge. If they are, police should take them to court for the bail hearing unless it is impracticable.
Police are currently barred from making bail decisions for murder, as are bail justices and magistrates. We did not see the logic in this decision when they can all make bail decisions for other serious offences that carry the same penalty. We recommend that all decision makers can hear bail for all offences.
The Bail Act requires police to take accused people to court for bail hearings, unless the court is closed. We think this is a waste of police time if the police think bail should be granted. We recommend police be able to grant bail when a court is open, except where the accused is already on bail as discussed above. If police oppose bail they must still take the accused before a court, or a bail justice after-hours.
During our review, concerns were raised about bail conditions that are imposed to regulate people’s behaviour.
Our criminal justice system presumes that people are innocent until tried, but some bail conditions potentially punish people before their case is heard and some conditions set them up to fail.
We recommend that the Act state that bail conditions imposed should be no more onerous than necessary, and reasonable and realistic taking into account the circumstances of the individual accused person.
“Therapeutic” conditions direct people to services for assistance with problems such as drug and alcohol addiction or homelessness. This helps people to appear for their court hearings and potentially reduces recidivism. We recommend continued support for court-based therapeutic bail programs and that police be encouraged to refer accused people to such services.
The report recognises the disadvantage faced in the criminal justice system by certain groups, such as Indigenous Australians, immigrant communities, and people with cognitive impairment. We recommend culturally appropriate support programs for accused people and greater funding for emergency housing services. We add our voices to the many who have preceded us in calling for the decriminalisation of public drunkenness.
Children are not given special consideration in the bail process, as they are during sentencing and in all other parts of the criminal justice process. We recommend the Bail Act recognises that children should not be treated in exactly the same way as adults. We also recommend that decision makers be able to remand young people (those aged 18–20) who are considered suitable to a Youth Justice Centre or Youth Unit in a prison.