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The ongoing reform of bail laws in Victoria

Unit 3: Law-making
Area of Study 1: Parliament and the Citizen
Focus: the reasons why laws may need to change/ the means by which individuals and groups
influence legislative change - use of the media

Area of Study 2: The Constitution and the Protection of Rights

Focus: evaluate the means by which rights of Australians are protected by the Commonwealth
Constitution, and the extent of this protection

Unit 4: Resolution and Justice

Area of Study 2: Court processes and procedures, and engaging in justice
Focus: criminal pre-trial procedures and their purposes, including bail and remand and
committal hearings

Introduction: The Bail Amendment Act 2016 (children)

3 May 2016
Victoria Legal Aid welcomes the commencement of the Bail Amendment Act 2016

This Act is significant for children. In enacting this legislation, Parliament has
acknowledged that children are different to adults and should be treated differently
when considering bail.
It responds to the large increase in children arrested and remanded (numbers have
tripled since 2012 for young people aged between 10 and 14) and arrested and charged
with bail offences.
Amendments relevant to children include:
- New section 3B now sets out considerations a court must take into account when
making a determination on bail for a child. These include consideration of all other
options before remand in custody, the preservation of family and home, the
continuation of education, the minimisation of stigma and the likely sentence the
child would receive if found guilty
- A court may take into account information from a bail support service; and that
the Court must not refuse bail on the sole ground that the child does not have
- New safeguards provide that conditions of bail be no more onerous than necessary
and do not constitute unfair management of the child. The court must on the first
mention review pre-court grants of bail and vary any conditions as necessary to
bring the conditions into compliance with the purposes of the Bail Act
- New section 30A(3) establishes that it is no longer an offence for children to
contravene bail conduct conditions. This amendment will apply on and after the
commencement of the Act regardless of when the breach is alleged to have been
- Substituted section 345 Childrens Youth and Families Act 2005 (CYFA) creates a
presumption in favour of initiating criminal proceedings against children by

summons. Police must have regard to this presumption when commencing
proceedings against children. This aligns with Victoria Police best practice and
further strengthens the legislated presumption in the pre-existing s.345 CYFA.
- Changes have also been made in respect of the publication of proceedings with
Magistrates now able to authorise publication of identifying material about a child
in emergency circumstances and where the publication is reasonably necessary for
the safety of the child or any other person or the community.

Carjacking and bail reform (August 2016)

In August 2016, the Victorian Parliament introduced legislation to create tough new
offences for carjacking and home invasion to give police the laws they need to keep
the community safe. The legislation, developed in close consultation with Victoria
Police, included tough new penalties and statutory minimum sentences for
aggravated carjacking and aggravated home invasion.
The new legislation will amend the Crimes Act 1958 to create new offences of
carjacking, aggravated carjacking, home invasion and aggravated home invasion.
The Bail Act 1977 was amended to include a presumption against bail for aggravated
carjacking, home invasion and aggravated home invasion. This means the accused will
need to justify why they should not be remanded.
The new show cause provisions apply regardless of the age of the offender.
The new offence of carjacking carries a maximum penalty of 15 years and those
convicted of aggravated carjacking face a maximum penalty of 25 years. A statutory
minimum non-parole period of three years will also apply to aggravated carjacking.
Home invasion will have a maximum penalty of 25 years and aggravated home
invasion will attract a statutory minimum non-parole period of three years.
Home invasion is when a person, in the company of others, commits a burglary while armed or
where there is a person in the house. To recognise the traumatic effect on victims, the Bill
specifically introduces an element of strict liability which means it is irrelevant whether the
offender knew if there was someone home at the time.
Aggravated home invasion applies where there are at least three offenders, they are armed, and
commit a burglary on premises where a person was present and the offender knew or was
reckless as to whether there were people in the home.
Carjacking applies when an offender or offenders steal a vehicle and use force, or threaten to
use force. Aggravated carjacking occurs when the person committing the offence has an
offensive weapon, or they cause injury to another person during the commission of the offence.

Magistrates to be called in after hours in Victorian bail law reform

Lucille Keen Australian Financial Review 23/1/2017

The Victorian government will establish a night court for magistrates to hear bail requests
over weekends and after hours as part of a major shakeup of the state's bail system. The reform
plans were announced after five people were killed - including a baby and child - after
Dimitrious 'Jimmy' Gargasoulas allegedly drove into a crowd in Bourke Street mall in
Melbourne last Friday, while 30 people were injured. Mr Gargasoulas had been released on
bail five days before the incident.

He was discharged from hospital on Monday and taken for questioning at Melbourne West
police station in relation to the incident. Later in the day he was taken to the Melbourne
Magistrates Court, where he was expected to be charged with five counts of murder. Other
charges are pending. Mr Gargasoulas' defence lawyer told the court her client was unwell and
asked to be excused from attending Melbourne Magistrates Court, with Magistrate Jelena
Popovic granting the request. The case is due to return to court on August 1 for a special

The government's bail reform proposals will likely mean that more matters are heard by
magistrates instead of bail justices. Supreme Court Judge and Director of Public Prosecutions,
Justice the Honourable Paul Coghlan has been asked to review all bail laws, including the role
of bail justices. He has until April to deliver his final report.

The government has already attempted to toughen bail laws, reversing the presumption of
bail for people who have been charged with serious offences and have convictions for failing
to appear on bail in the past five years. Sentences were doubled for people who failed to
appear on bail and there is now a presumption against bail if the accused is charged with
aggravated carjacking, home invasion or aggravated home invasion.

In Victoria, bail justices are volunteers who are called in after-hours, with about 260 people
working on a rotating roster. Premier Daniel Andrews said it was the government's job to take
the "frustration, anger and the deep sadness" that Victorians feel after the Bourke Street
tragedy and to "make sure that's put into reform and change".

"It is very clear that our bail system needs a major shake-up and we are getting the best expert
advice to make sure we get this right," Mr Andrews said.

The Law Institute of Victoria said it supported the establishment of a night court for
magistrates to hear after-hours bail requests. LIV President Belinda Wilson said that reform
of the bail system would require a collaborative approach and input from a range of experts
including criminal lawyers, mental health practitioners, police and drug and alcohol workers
as well as the community.

"We also welcome the State government's recognition that it is important to allow a
comprehensive and well-resourced process and give it the space and time to consider and
advise rather than make knee-jerk decisions," Ms Wilson said.

She said LIV would set up a special taskforce headed by expert legal practitioners
volunteering their time and resources to respond to contribute to the reform process.

On Monday night, the government held a vigil for the victims of the Bourke Street incident in
Federation Square.

Review of bail reform human rights focus
After Bourke St, Victoria should not rush in on bail reform
The Conversation - Rick Sarre, University of South Australia

The horrifying event of last Friday in Melbournes CBD was yet another episode where a
person used a vehicle as a weapon of destruction. It left five people, including a baby boy,
dead. Another 30 people were injured, many seriously.

The alleged perpetrator, Dimitrious Gargasoulas, was revealed to be on bail in relation to

another alleged offence six days before the attack, despite opposition from Victoria Police
prosecutors. A bail justice (an out-of-hours volunteer honorary justice, like a justice of the
peace) had granted Gargasoulas bail on January 14.

In response, Victorian Premier Daniel Andrews has announced that magistrates, rather than
bail justices, will be exclusively deployed to hear bail applications in serious matters. Andrews
has also directed the former director of public prosecutions, Paul Coghlan, to review Victorias
bail system.

Does the bail justice system work?

Faced with cries to do something when a crisis erupts, governments, understandably,
become risk-averse. So, it was quite predictable that the Andrews governments first target in
this case was the bail justice system. This uniquely Victorian initiative has drawn praise for
more than two decades.

While one can sympathise with those who are calling for review and change, we need to
exercise caution before overhauling the operation of bail laws on the basis of one, albeit
horrendous and tragic, case. The bail justice system is one of the reasons usually given to
explain why Victorians continue to enjoy the lowest remand-in-custody rates in Australia.

There is no evidence that that achievement has compromised safety for Victorians generally.
Moreover, police officers actually make 90% of bail decisions; magistrates or bail justices are
only called in to adjudicate in the event of police denying bail.

There is also no reason to suspect that a magistrate would not have reached the same bail
conclusion as the bail justice did in relation to Gargasoulas on January 14.

Denying bail fills our prisons

The denial of bail is also a significant factor in the seemingly unstoppable rise in Australias
prisoner numbers. There was yet another significant rise in numbers last year. In the
September quarter of 2016, the average number of full-time prisoners was 38,998. Of these,
32% (12,332) were unsentenced that is, denied bail.

This takes Australia, for the first time in its modern history, out of the 15-30% range which
includes, for example, the UK, the US, Canada, Russia, Israel, Poland, New Zealand and
Germany and puts it into the 30-50% range found in Brazil, Thailand, Papua New Guinea,
France, Kenya and Mexico.

The number of unsentenced prisoners in Australia increased by 22% from 2015 to 2016. This
followed a 21% increase from 2014 to 2015. Over the last five years, unsentenced prisoner
numbers in Australia have increased 81%. The trend is financially and socially irresponsible
and unsustainable.

Australians need to be a little more forgiving regarding the decisions of bail authorities when
their decisions turn out to be ill-fated. Thousands of accused persons are granted bail each
year over police objections with few adverse consequences.

Australia needs to be very careful not to allow the bail system whether it is overseen by
magistrates or lay justices to become a political scapegoat at the hands of commentators
exercising 20/20 hindsight.

Finally, we must be very careful not to rush to judgement and pretend that by tightening
certain justice processes the problem will go away. Simply putting (and keeping) behind bars
for months at a time everyone whom someone has deemed to be a risk to their familys safety,
their own safety or public safety is not the answer.

Jail only the scary, invest the savings in education

Tightening bail laws and replacing bail justices with magistrates will not make Victorian
MIRKO BAGARIC - The Australian - January 27, 2017

The reflexive and defensive response by Victorian Premier Daniel Andrews to the Bourke
Street tragedy will do nothing to improve Victorias criminal justice system. That the alleged
Bourke Street killer, James Gargasoulas, would have been released on bail a week before the
killing represents a breathtaking but utterly foreseeable institutional failing.

Tightening bail laws and replacing bail justices with magistrates will not make Victorian safer.
The government needs to abandon reflexive and tokenistic reforms and implement reforms
that will inject greater expertise into the system. Decisions relating to community safety need
to be based on science, not hunches.

Young, unemployed, under-educated males with mental health and substance abuse
problems and with a history of violent offending are the most likely cohort in the community
to commit further acts of violence. This is demonstrated by risk assessment tools, which use
actuarial estimates when considering the likelihood an accused will reoffend. If the bail
decision regarding Gargasoulas had been informed by his risk assessment, the likelihood that
any responsible decision-maker would have granted him bail is about zero. Despite this,
judicial hunches and political expedience continue to distort Victorias criminal justice system.

The idea that the Victorian government can make the community safer by putting more
remand or convicted people in prison is misguided. Science and sound legal and moral policy
show we need to have a bifurcated approach to criminal justice. We need to have a different
approach to offenders who scare us and those who make us angry.

The empirical data establishes that the crimes that inflict the most human suffering are serious
sexual and violent offences. All offenders who commit these crimes should be imprisoned.
All other offenders should not.

Tax cheats, thieves and small-time drug offenders make us angry but they dont inflict carnage
on the community. They need to be dealt with using sanctions that dont cost the $100,000
annually that it takes to house each prisoner.

The dichotomy between violent and sexual offenders and other offenders applies equally
when it comes to bail decisions. Victoria has toughened its bail laws over the past decade, to
the point where 29 per cent of prisoners are on remand an increase of 10 per cent in about
10 years.

But the answer to improving the bail and sentencing system does not rest in refusing bail to
more suspects. It rests in refusing bail to the cohort of offenders most likely to seriously violate
the sexual autonomy and bodily integrity of innocent people. This is where the system is
deficient. These decisions are currently made by reference to the unstructured and non-
empirically validated decisions of judges and magistrates.

This leads to a high number of flawed decisions. Lawyers, even those appointed as judges,
are not trained to predict future criminality. And it is flawed to suggest that experience as a
lawyer or time on the bench improves this judgment. It does not. Judges are not unaccountable
for their decisions. There is not even a systematic reporting process whereby judges are
informed of the outcomes of their decisions.

Science can help. Progressive countries such as New Zealand have invested in developing and
testing actuarial tools that predict the likelihood an accused person or offender will reoffend.
These tools use static factors (such as criminal history score) and non-static factors (such as
employment status and family dynamics) and are significantly more accurate than hunches.

Government dereliction has resulted in these tools not being nuanced to the Australian setting
and being used to inform bail and sentencing decisions. The hundreds of millions of dollars
this reform would save could be used to reduce crime by the most effective possible means
more uniform police on the streets. There would even be surplus savings to improve our ailing
health and education systems.

Mirko Bagaric is a professor of law at Swinburne University and author of Australian Sentencing

Unit 3: Law-making
Area of Study 1: Parliament and the Citizen
1. Outline the reasons why the law needed to change in this case.
2. Evaluate the roles played by individuals and groups in influencing change in the law
in this area.
3. To what extent does the responsiveness to changing circumstances in terms of the
commission of offences highlight the strengths of the parliament as a law-maker.

Area of Study 2: The Constitution and the Protection of Rights
4. Australia needs to be very careful not to allow the bail system whether it is overseen by
magistrates or lay justices to become a political scapegoat.
We need to have a different approach to offenders who scare us and those who make us angry.
a) Outline the meaning of the term, statutory rights.
b) To what extent does the changes to bail laws in Victoria highlight the lack of
protection for key rights under our legislative framework in Australia?

Unit 4: Resolution and Justice

Area of Study 2: Court processes and procedures, and engaging in justice
5. Define the terms:
a) Bail; and
b) Remand
6. Outline two of the circumstances in which bail could be refused in Victoria.
7. Explain two conditions that could be attached to the granting of bail.
8. Explain the ways in which the introduction of the night court could address limitations
on the operation of the criminal justice system.