Examining the Persuasiveness of Bail Law in Victoria

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