Bail law reforms unveiled as attorney-general concedes state ‘cast the net too wide’
- Victoria tightened bail laws in 2018 in response to the 2017 Bourke Street attack by James Gargasoulas, who was on bail at the time of the deadly rampage.
- The 2018 changes included the “reverse onus test” and the “unacceptable risk test”, which were designed to make it harder to obtain bail, regardless of the seriousness of offending.
- The current “reverse onus test” means an accused person must give a compelling reason why bail should be granted, instead of the onus being on police to convince a court to keep them in custody.
- The current “unacceptable risk test” requires the prosecution to establish that the accused person is a flight risk, may commit an offence while on bail, be a danger to the public or interfere with a witness if released.
- Under proposed changes, the bail tests would apply only to the most serious offences.
The state’s controversial 2018 bail laws, which almost doubled the number of Aboriginal women in custody, would be wound back within months as part of sweeping bail reforms proposed by Attorney-General Jaclyn Symes.
Under the plan, low-level offenders would no longer need to prove they won’t pose a risk to the community if released on bail, in a move that dramatically pares back the controversial “reverse-onus test” for bail.
Attorney-General Jaclyn Symes, with Premier Daniel Andrews, said the government would pare back the controversial reverse onus bail test so it applies only to serious offenders.Credit:Joe Armao
A second “unacceptable risk test” – used to decide whether someone is a threat to public safety, a flight risk or likely to commit a crime if released – would also be refined so the risk of minor reoffending is no longer considered sufficient reason to refuse bail.
In an exclusive interview with The Sunday Age, Symes admitted that in responding quickly to the 2017 Bourke Street massacre, the state government’s changes in 2018 had gone too far and “cast the net too wide”.
“There's no denying that there are consequences of the changes that we made,” Symes said.
“We know that they’ve had a disproportionate impact on a lot of groups, particularly Indigenous people, people with disabilities and women.”
“The tests to establish when you should get bail are too strict on those groups.”
The planned overhaul of the state’s bail laws comes five years after the Andrews government restricted eligibility for bail in response to James Gargasoulas killing six people and injuring many others in a violent car attack on Bourke Street while he was on bail.
The 2018 change known as the reverse-onus bail test meant that an accused person had to give a compelling reason why bail should be granted, rather than police being required to argue why it should not.
“We don't have any apologies to make for acting in response to community outrage of something that was absolutely abhorrent,” Symes said. “Responding quickly and perhaps, without the opportunity to consider all of the consequences, was something that had to be done at that time”.
“But since that time, it’s become clear that … we cast the net too wide.”
Symes confirmed that the two reforms – refining the unacceptable-risk test and limiting the reverse-onus bail test to those charged with serious offences and those who pose a terrorism risk – had received in-principle support in cabinet.
The government will begin broader consultation this week before the proposed reforms return to cabinet for approval and any amendments are introduced to parliament
The commitment to bail reform comes after coroner Simon McGregor took aim at the state’s strict bail laws for being “incompatible” with the Charter of Human Rights and discriminatory towards First Nations people, as part of his damning findings on the death in custody of Indigenous woman Veronica Nelson.
Victorian coroner Simon McGregor found Veronica Nelson’s death was preventable.Credit:
Nelson was arrested on December 30, 2019, and taken to a nearby police station for questioning on suspicion of shoplifting. Instead of being released on bail, she was placed on remand and found dead in her cell on January 2, 2020.
Symes described the case as “harrowing” and said it was “incumbent upon the government to respond to any of those failures”.
“Whilst we want to keep this strictness of the system on those more serious offences, we know that we've hoovered up people who have committed repeat minor offences, particularly those that are not causing a threat to community safety such as shoplifting.”
“There's much better ways to respond to that type of offending.”
Any weakening of bail laws is expected to be opposed by Victoria’s powerful police union, which has strongly objected to watering down bail laws, insisting any change would be at the expense of community safety and could lead to a surge in crime against property.
“There’s sometimes talk about relaxing bail laws just around property, and sometimes that’s rattled off as though property offences don’t count,” Police Association secretary Wayne Gatt told 3AW last week.
“Plenty of people are terrified when a house is broken into, especially when they are there. And if you have a situation where somebody commits an offence like that, and then the next day does it again, and the next day. What do we do?”
Symes acknowledged the political difficulty in delivering criminal justice reform but promised not to have “knee-jerk reactions” to individual cases in the future, and instead use them as “a sounding board” for community expectations.
“Not everyone will welcome the relaxation of, of bail reform. But I think on balance the majority of people will understand why it’s important to address vulnerable offenders.”
In recent months, several Liberal MPs have called on the government to reduce incarceration rates by addressing the root causes of crime and providing alternative pathways for low-level offenders, signalling a major shift away from the party’s previous tough-on-crime approach.
Symes told The Age she had begun initial consultations with the opposition about the need for justice reform and was encouraged by the “prospect of bipartisanship”.
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