Examining the Persuasiveness of Bail Law in Victoria

This article critically examines the persuasiveness of bail law in Victoria and discusses measures that can be enacted to improve it. It explores the impact of refusal of bail on individuals and the community, and highlights the need for wider reforms in the criminal justice system. The article also suggests considering the British model of approved premises for certain offenders. The government of Victoria has sought advice from a former Supreme Court judge on bail reform.

The Victorian government has in recent years made it more difficult for some defendants to be
released on bail….
Critically examine the persuasiveness of the comment. In your answer, discuss what measures
can be enacted to improve bail law.
In case of all the discussions related with justice system, a need is felt to maintain a balance
between the safety of the general public and the rights of the persons who have been accused of
crimes. At the same time, there is a need to remain aware of the objective of reducing the rate of
offending and particularly in Victoria, the needless additions to the already high number of the
persons who are on remand in prison. Wider consideration also needs to be given to the ways in
which the persons are treated who have been refused bail and the long term implications of such
refusal. It has been pointed out by several experts that concern is growing regarding the lack of
support in prison for mental health, addiction and disability which means that several persons are
returning to the community with less ability to cope and probably more risk to the public safety.1
In a report published in 2015, Ombudsman Deborah Glass has pointed out that nearly 30 percent
of the population in prison comprises of the remand prisoners who get very little access to
behavioral and mental health programs.
1 David Brown, “Looking behind the Increase in Custodial Remand Populations” (2013) 2
International Journal for Crime, Justice and Social Democracy 80, 85

The result is that the persons who have been refused bail and have to go to prison may lose their
employment as well as their support networks and family connections. This in turn may result in
a rise in the risk of offending at the time of the release of such persons.2 They should not be
considered as an argument against refusing bail, but it certainly reveals the need to reconsider the
wider effects of the refusal of bail and to consider the need for changes that need to be made to
the criminal justice system. At the same time, there is also the need to ask questions regarding
the way of the persons on remand are better built and if this probably fulfills the aim of reducing
the rate of reoffending and protecting the safety of the people.3
Under these circumstances, a call has been made for the government to Victoria to consider the
British model which allows some of the persons who have been charged with an offense of
violence to live in secure accommodation. The system is known as the Approved Premises. The
result is that the British courts can grant bail to a person along with the condition that such
person is going to live in approved premises, where strict rules of entry and exit are present and
the premises is monitored by CCTV and is also linked to the police. Therefore, when an
individual is living at the approved premises, the workers also evaluate and assess the person
with behavioral and mental health issues. The government of Victoria has also asked Paul
Coghlan, the former Supreme Court judge to give advice regarding bail reform, which includes
any recommendations for change in the legislature.4 This can be considered as a welcome step
2 Julia Quilter, “Not for Punishment: We Need to Understand Bail, Not Review It”, The
Conversation, 3 July 2014
3 Sue King, David Bamford and Rick Sarre, “The Remand Strategy: Assessing Outcomes” (2008)
19 Current Issues in Criminal Justice 327
4 Rick Sarre, “After Bourke St, Victoria Should Not Rush in on Bail Reform”, The Conversation,
23 January 2017.

that may result in significant, long-term reform that is supported by the resources for
implementing such reforms.
In case of any reforms that are made to the bail system, it is needless to say that priority should
be the safety of the public but at the same time the government will be in a better position if it
avoids any short-term populist changes and in its place adopts system-wide reforms that are well
thought out.5
There was a time when Victoria was considered as among the most progressive states regarding
the issue of imprisonment. Particularly low rates of imprisonment characterized the state and
innovative collection policies are implemented. But now Victoria leads the country by having the
highest rate of growth in case of imprisonment. There was a rise of 40.5% in the rate of
imprisonment in Victoria between 2009 and 2014. The next highest growth was 26%, which was
seen in South Australia. A huge impact is created on the budget of the state. The real recurrent
cost of prisons president of Victoria increased from A$56.47 per year in 2003/4 to A$83.95 in
2014.6 When factors like inflation and growth of population are taken into account, this comes to
an increase of 49%. At the same time, having more persons in the prison also has a negative
impact on the safety of the community. There are devastating long-term intergenerational effects.
It has been recognized by the government that this growth in prison population resulted in
putting "enormous pressure" on the system. However, the response to this pressure under the
previous government was to make more investment in the capacity of the prisons.7
5 Rick Sarre, “Challenging Spiralling Remand in Custody Rates: What Legal and Procedural
Changes Can Address the Trend?” (2016) 2 Journal of Criminological Research, Policy and Practice 196,
197
6 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 rapid increase in the rate of imprisonment is not directly correlated with an increase in the
rate of crime. According to the recent crime statistics of Victoria police, it is revealed that in fact
there has been a slight decrease in the rate of crime in the last 10 years. Therefore it is not the
crime, but other changes in policy and practice that are responsible for the present trends in
imprisonment. The four major changes that have been made in this regard can be described as
follows:
Sentencing: there has been an increase in imprisonment terms.
Parole: as a result of the changes that were made to parole, a large number of parole applications
were rejected and as a result there will longer imprisonment terms. At the same time as evidence
to suggest that in view of increasingly stringent conditions of parole, and more severe
punishments that are already in case of the breach of parole. A large number of prisoners are
deciding to serve their full sentence in prison and do not apply for parole.8
Bail: in view of the significant changes introduced by the Bail Amendment Act, which included
more rigorous oversight of the persons who have been charged of a crime and introducing
offenses for the breach of the conditions of bail or for committing indictable offenses when the
person was on bail, each of which is punishable by imprisonment for up to three years, resulting
in the potential for further charges and longer imprisonment sentence.
7 Matthew Ericson and Tony Vinson, Young People on Remand in Victoria: Balancing Individual
and Community Interests (Jesuit Social Services, 2010) 20
8 Arie Freiberg et al, “Parole, Politics and Penal Policy” (2018) Queensland University of
Technology Law Review

Suspended sentence: the suspended sentence was completely abolished in Victoria. This was a
term of imprisonment that was completely or partially suspended for a particular period. The
abolition of the sentencing option has been criticized by the legal fraternity, which termed it as a
'mistake' that is going to result in "more sustained rise in prison population and also in rate of
crime and perhaps in the rate of recidivism."9
Impact: the rise in late of imprisonment has an effect on the whole community. Not only is
expensive but it also fails to increase the safety of the community in the long run. Therefore the
wider impact of the rising rate of imprisonment is not only wide reaching it is also long-term. It
has also been revealed by the data available that there are certain key groups who are affected
even more significantly as a result of the rise in imprisonment in Victoria.10
Indigenous Australians: the rate of imprisonment in case of the aboriginal and Torres Strait
Islander people is 12 times higher as compared to the non-ATSI people in Victoria. Therefore the
ATSI people in Australia comprise nearly 0.7% of the total population of Victoria, but they
represent nearly 7.7% of the population in prison. This proportion is not as high level of
overrepresentation that is present in other parts of the country. An example in this regard can be
given of New South Wales where the aboriginals comprise 34% of the total prison population.
Similarly in northern territory this number is 86%. However, it reveals a disproportionate impact
of prison expansion on the indigenous population in Victoria. The indigenous imprisonment
should be related with the wider context of teaching this disadvantage that is present in
education, health and employment.11
9 David Brown and Julia Quilter, “Speaking Too Soon: The Sabotage of Bail Reform in New
South Wales” (2014) 3 International Journal for Crime, Justice and Social Democracy 73, 73
10 John Hatzistergos, Review of the Bail Act 2013: Final Report (2015)
11 Anthea Hucklesby and Rick Sarre, “Bail in Australia, the United Kingdom and Canada:
Introduction” (2009) 21 Current Issues in Criminal Justice 1,

Woman: there has been a disproportionate rise in the imprisonment of women in Victoria during
the last decade, which took place at a rate of 41%. Nearly a quarter of prison population of
women in Victoria is unsent desperate means that they are on remand. It has also been
discovered that the women prisoners are 1.7 times more likely to be suffering from mental health
problems as compared to the male prisoners. Similarly, non-aboriginal women are more likely to
try to commit society as compared to the non-aboriginal men. It is a well-founded fact that there
is disproportionate effect on women of the issues like forced to release homelessness. Majority
of these women have dependent children. Imprisonment exacerbates a lot of challenges. These
include mental health problems, inaccessibility to long-term accommodation and the restricted
chances of employment after release. And these issues have a significant impact on women and
their children. In a lot of cases these problems disrupt family reunions and also cause problems
in the return of the children to the custody of their mothers. Consequently, imprisonment may
have devastating and long-term effect on the lives of the children and also the lives of their
family members.
Bourke Street incident: in view of this incident that took place in January 2017, a need was for,
we evaluated the bail laws throughout Australia. These included the recent amendments that
have been made in Victoria, on account of the Coghlan review. It also needs to be noted that a
review of the aftermath of Gargasoulas case, there has been increasingly politicized environment
related with bail laws reform. In fact, it has been pointed out that since 1980s, bail regime has
been used comments for political purposes, particularly in order to give a message that they are
"tough on crime". As it said sentencing in payroll, the issue of bail is also right for politicization
in case of any debate related with law and order and generally the political parties tried to outdo

their opponents in establishing the "toughness" of the criminal justice policies adopted by them.
Although each state and territory in Australia has different structure to the legislation, but
custodial remand concentrates on achieving the three goals that are often conflicting with each
other.12 These goals are to:
 Ensure the credibility and integrity of justice system;
 Protect the community; and
 Safeguard the best interests of the defendant.
Therefore arguably the legislative and operational changes that have been introduced to the bail
law during the recent decades have resulted in a shift away from the main concern with the first
outcome that is to ensure that the accused is not From Focusing on the second which is to
prevent re-offending by the person while on bail. This shift was conceptualized in the move from
considering bail as "basically procedural mechanism to a substantive and independent forum
where the objectives of crime prevention are pursued through the risk-based mentalities" due to
this shift in part, the unsentensed prison population in Australia increased to a significant high
level. Out after 41,304 adult persons who were held in prisons throughout Australia in September
2017 a quarter of these persons were unsentenced (13,020). As a result of these figures, for the
first time in modern history of Australia has been taken off of the 15 to 30% range , which
includes states like UK, USA, Canada, Israel, New Zealand and Germany and has been placed
12 Brown and Quilter, n 54. See also Arie Freiberg and Neil Morgan, “Between Bail and Sentence:
The Conflation of Dispositional Options” (2004) 15 Current Issues in Criminal Justice 220

into the 30 to 50% range. Comprising of countries like Brazil, Thailand, France, Mexico and
Kenya. As compared to the situation, in 1997 only 14% of the prison population of Australia was
unsentensed. This increase in prison population is, showing no signs of slowing down even if it
is socially and at unsustainable and irresponsible. For example, the cost to detain an adult person
is $286 per day. It suggests that the present national level budget for remandees is around 1.4
billion. At the same time, considerable justice and human rights concerns have also been
expressed regarding the rise in the number of accused persons who are held on demand in
custody. In this regard research conducted in Victoria reveals that 40% of the remandees were
either found not guilty or, they were sentenced to a period that was to or less than the time that
spent by them on remand. It has also been revealed by the research conducted in New South
Wales that 55% of the persons who were held on remand, were later on release without
conviction or, they were not subject to any further sentence.
Under these circumstances is also a need to remind that every accused person allowed by the law
to expect to enjoy freedom until trial. This presumption of innocence forms the basic tenet of our
criminal justice system. This feature sets apart our criminal justice system from arbitrary
detention and the lack of fairness and justice that are present in case of totalitarian regimes.
General test refusal of bail: There are a number of studies that look at the reasons behind
different Bail Acts in different jurisdictions in Australia and the considerations that are at play
usually. Therefore the provisions that specify the circumstances under which the bed is going to
be denied have to be examined. For example in Victoria, Queensland and New South Wales
there are similar models.. Therefore in these sections, it is required that the bail should be refused
when "unacceptable risk" is present that in case the bail is granted, the accused is may:

Fail to surrender into custody;
Commit an offense
Cause a danger to public safety; or
interfere with the course of justice or with the witnesses.
At the same time, while deciding if the applicant should be released on bail, the bail authority is
required to give main consideration to the deed that anything can has are perceive to have
regarding physical protection from the accused.
Under these circumstances, the question arises if the safety of the community is generally
operated by the presumption of innocence in case of serious, and the repeat offenders while
making decisions regarding bail. It also needs to be seen if the decision-makers regarding bail
have lost sight of the proper balance that should be achieved in this regard and the bail is granted
too readily even in case of repeat offenders. Under the circumstances, the government tried to
assure the people in Victoria, that the Bail Act has been tightened at the government is going to
invest much good sources for avoiding tragedies like Bourke Street. Under the circumstances and
after a review of the bail system, the parliament in Victorian, amended the Bail Act and get
passed the Bail Amendment Act Bill 2017 which received the assent on 27 June 2017.
In the beginning of the present year, Daniel Andrews, Victorian Premier said that as a result of
several proposed reforms it will become difficult for the persons who have been accused of
serious crime to be released on bail. This was going to take place as a part of the complete
overhaul of the current bail system of the state. In this regard, he claimed that the safety of the
community is going to be given much higher priority.

However, the question that needs to be asked in this regard, is why shocking deaths of innocent
people took place before the government in Victoria decided to act together much higher priority
to the safety of the community as compared to the interests of serious offenders. This cannot be
described as the ideal state of affairs when the judicial officers and beer justices are required to
be reminded in the form of the amendments made to the Bail Act that they have to give higher
priority to the safety of the community when making decisions regarding bail to the accused.
However, even in case of the recent amendments that have been made to the Act, the courts and
Bail Justices will be free to interpret the provisions like 'exceptional circumstances' and
'compelling reasons' in the manner that they feel fit. Under the circumstances, it can be said that
the reminder given to the decision-makers regarding bail in Victoria to place the interests of the
community first can be described as very weak. These reforms are the result of the response of
the government to Bail Review that took place after Bourke Street attack. This review was
conducted by Mr. Paul Coghlan, Supreme Court Justice. In this review, seven questions were
considered. The focus was on legislative and practical reforms to deal with the risk and
maximize the safety of the community. Two separate reports are provided by Mr. Coghlan to the
government in Victoria and 37 recommendations were made in these two reports.
At the time it was indicated by the government of Victoria that it was going to adopt each
recommendation made in the first report. It also appears that the government has implemented
many recommendations with the passing of the Bail Amendment (Stage One) Act 2017. But still
further consultations are going to take place with red agencies and community groups regarding
the long-term recommendations that have been mentioned in the second report before any further
changes are going to be implemented. Under the circumstances it is clear that the second Bill is
also going to be introduced in the Parliament of Victoria. This will address the more complex

issues and the recommendations made in the second report of Mr. Coghlan. Daniel Andrews, the
Victorian Premier has mentioned that the recommendations made in the second report are going
to affect the old patent system and therefore they need careful consideration. Although the move
towards simpler new legislation has been welcomed by the experts, but there are many who
claimed that the new changes are only cosmetic and they are too small and too weak. In this
regard has been said that a cultural overhaul is necessary in this regard. Under the circumstances,
it can be stated that not much has been achieved by the government of Victoria in handling the
concerns of the community. Law reform is not an easy task, but much more effort is required to
maintain a proper balance between the entitlement to bail and maximizing the security of the
community.

Bibliography
Hucklesby Anthea and Sarre,Rick “Bail in Australia, the United Kingdom and Canada:
Introduction” (2009) 21 Current Issues in Criminal Justice 1,
Freiberg, Arie “Parole, Politics and Penal Policy” (2018) Queensland University of Technology
Law Review
Freiberg Arie and Morgan Neil, “Between Bail and Sentence: The Conflation of Dispositional
Options” (2004) 15 Current Issues in Criminal Justice 220
Brown David and Quilter, Julia “Speaking Too Soon: The Sabotage of Bail Reform in New
South Wales” (2014) 3 International Journal for Crime, Justice and Social Democracy 73, 73
Brown, David “Looking behind the Increase in Custodial Remand Populations” (2013) 2
International Journal for Crime, Justice and Social Democracy 80, 85
Hatzistergos, John. Review of the Bail Act 2013: Final Report (2015)
Quilter Julia, “Not for Punishment: We Need to Understand Bail, Not Review It”, The
Conversation, 3 July 2014
Bartels, Lorana “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
Ericson Matthew and Vinson, Tony Young People on Remand in Victoria: Balancing Individual
and Community Interests (Jesuit Social Services, 2010) 20

Sarre, Rick “After Bourke St, Victoria Should Not Rush in on Bail Reform”, The Conversation,
23 January 2017.
Sarre, Rick “Challenging Spiralling Remand in Custody Rates: What Legal and Procedural
Changes Can Address the Trend?” (2016) 2 Journal of Criminological Research, Policy and
Practice 196, 197
King, Sue, Bamford David and Sarre, Rick “The Remand Strategy: Assessing Outcomes” (2008)
19 Current Issues in Criminal Justice 327