Changes to Bail System in Victoria: Evaluating Effectiveness

In view of the Bourke Street tragedy in Melbourne, the government of Victoria had announced
certain changes that were being made to the bail system of the state as well as a major review of
the bail legislation in Victoria that is going to take place in two stages. The first stage of these
reforms is being introduced from first July. On the other hand, the second set of amendments is
yet being debated by the upper house of Parliament. As is the case with sentencing and parole,
the issue of bail is also subject to politicization. In the present election year, there has been a lot
going on regarding the war based on the law and order in the state.
The purpose of remanding an alleged offender in custody is to protect the justice system and also
the community. In this way, the objective is to protect the justice system by making sure that the
accused turns up in the court for answering the charges laid against him or her. At the same time,
the objective is also to protect the community by preventing reoffending by the same person.
Even if traditionally, the focus of has been on the elimination of the risk related with the
absconding of the accused but in view of recent changes made in the bail law in Victoria, the
focus has shifted from this purpose to the objective of preventing reoffending.1 At the same time,
there has been a shift away from the presumption for bail to the presumption against providing
bail. The prosecutors are no longer required to argue why the accused piece to be held in
custody. Conversely, it is the alleged offender who is required to establish why the grant of bail
is justified under the circumstances.2
1 Julia Quilter, “Not for Punishment: We Need to Understand Bail, Not Review It”, The Conversation, 3 July 2014
2 Sue King, David Bamford and Rick Sarre, “The Remand Strategy: Assessing Outcomes” (2008) 19 Current Issues
in Criminal Justice 327.

The list of offenses has already been expanded by the government of Victoria regarding which
this presumption against bail is applicable. These offenses include a wide range of family
violence offenses, drug offenses, sex offenses, violent offenses, terrorism and even some
offenses related with driving. Arguably the bail laws of the state of Victoria are the most onerous
in Australia even if such a shift was presumption against bail can be seen across the country.3
Therefore partly as a consequence, there has been an unprecedented rise in the unsentenced
prisoner population in Australia. Now, 32% of all prisoners are unsentenced. This figure can be
compared with only 14% of the unsentenced prisoners would be years ago. With the cost of
nearly $300 per prisoner per day, there is significant fiscal burden related with keeping more
than 1000 unsentenced persons in prison. At the same time there are significant and obvious
concerns related to human rights and justice that are the result of a large population of
unsentenced persons languishing in the prisons. It has been established by the research conducted
in this regard that nearly half of the persons who are held on remand are either going to be bound
by the court as not guilty or they will be sentenced to the time that are already served on demand
and consequently they will be released immediately.4
The allegations of offending are not capable of justifying the forfeiture of human rights. A basic
principle of our criminal justice system is the presumption of innocence. This principle sets apart
the western system from the totalitarian regimes, because they depend on the very existence of
repressive power related with arbitrary detention. It also needs to be noted in this context that the
purpose of bail process is not to evaluate if the accused is guilty of a crime or not. Instead, this
process is the exercise of managing the risk; the risk that the accused may not appear in court
3 David Brown, “Looking behind the Increase in Custodial Remand Populations” (2013) 2 International Journal for
Crime, Justice and Social Democracy 80
4 Rick Sarre, “After Bourke St, Victoria Should Not Rush in on Bail Reform”, The Conversation, 23 January 2017

when required or the rest of reoffending by the accused. However during the recent past, this
purpose was hijacked by the politicians on account of the risk related with public opinion. The
result is a process of bail that has accusation, judgment and punishment are bundled into one.
In this regard, a significant role has also been played by the media. It has targeted the magistrates
and their injustices for granting the bail to alleged offenders and newspersons commit further
crimes. Therefore calls were made to sack the pair decision-makers are allowed such a thing to
happen three times. There was a competitor who went so far to suggest that such persons should
also face charges themselves.5
Our deciding the issue of bail is a difficult one. Little information is available to the magistrate or
bail justice on which the decision to grant bail has to be based and they are only a few minutes to
digest such information. Therefore it is very easy to criticize the bail decisions that may
inadvertently result in a serious crime, particularly in view of the benefit provided by hindsight.
It is also worth mentioning that this type of incidents are not very common.
It has been suggested that good policy should be informed by a wide range of cases that come
before the justice system and it should not be based on single or unusual cases. The process of
reforms to be law that is Victoria can be described as being driven in response to a few horrying
cases, but is were rare crimes. Therefore the question arises how far we are ready to go for the
purpose of beating the presumption of innocence of the accused, which is the basis of our justice
system as the magistrates and bail justices to become more averse to risk while making decisions
of bail.
5 Lorana Bartels, “Criminal Justice Law Reform Challenges for the Future: It’s Time to Curb Australia’s Prison
Addiction” in Ron Levy et al (eds), New Directions for Law in Australia: Essays in Contemporary Law Reform
(ANU Press, 2017) 119

The decision to grant bail to a person who has been charged with criminal offense is a difficult
decision. Moreover, in most of the cases, such decision has to be made within minutes and very
little information is available in this regard. Therefore the need is to maintain a balance, while
making the decision between the protection of the community and the right, which provides that
the accused should be considered as innocent until proven guilty. As per this right, the
individuals should not be deprived of their liberty without any significant need. As mentioned
above, sudden changes have been made to the Bail Act in Victoria great view of the attacks that
took place in Melbourne. Under the circumstances, the effectiveness of these changes needs to be
evaluated.
Unacceptable risk test: according to recent changes, the unacceptable risk test is still the
applicable testing case of all the offenses. According to this test, if unacceptable risk is present
that any person who is going to be released on bail may result in endangering the safety of the
others, or may commit further crime or interfere with the witnesses, failed to comply with the
conditions of the bail or abstract justice in any way, then the decision-maker regarding the bed is
required to refuse bail to such person. The responsibility is on the prosecution establish before
the Bill decision-maker that such a risk is present and more such risk is unacceptable.6
Surrounding circumstances: a decision-maker regarding bail is required to consider the
surrounding circumstances of the matter while making a decision if the bail needs to be granted
to the accused person or not. In this context, it has been provided by section 3AAA, BAil Act
that there are certain 'surrounding circumstances' but these are not restricted to the matters that
6 Matthew Ericson and Tony Vinson, Young People on Remand in Victoria: Balancing Individual and Community
Interests (Jesuit Social Services, 2010) 20