Bail - Recommendations

1. The Bail Act 1977 should be repealed. The Act and its Regulations should be rewritten and replaced by a new principal Act and new regulations which incorporate the recommendations in this report. All provisions dealing with bail should be in this Act.

2. The new Bail Act and Regulations should be written in plain English. The Act should be drafted with its audience in mind, especially the needs of lay decision makers.

3. The forms contained in the Bail Regulations 2003 should be redrafted in plain English, taking into account that a significant proportion of people who appear before the court have intellectual disabilities, poor literacy, or English is not their first language. The forms should contain the contact details of the registrar at the court to which the accused is bailed and support services within the surrounding area of the court to which the accused is bailed.

4. The new Bail Act should use the phrase ‘remand in custody’ when bail is refused, and ‘bailed to appear’ when bail is granted.

5. The new Bail Act should be drafted to refer to ‘court’, ‘police’, ‘bail justice’, and ‘registrar’ where appropriate to make the powers of each decision maker under the Act clear. Where different courts have different powers, individual courts should also be referred to.

6. The term ‘warrant of commitment’ should not be used in the new Bail Act.

7. The new Bail Act should refer to modern forms of communication in line with other Victorian legislation.

8. Section 4(2)(b) of the Bail Act 1977 should not be re-enacted in the new Bail Act.

9. The Bail Act should contain a purposes provision. The purposes of the Bail Act should be to:
• have within one Act all general provisions dealing with bail
• establish processes to ensure the prompt resolution of bail after arrest
• ensure bail hearings are conducted in a fair, open and accountable manner
• ensure bail is not used to punish accused people
• limit or prevent offending by accused people while on bail by providing for the imposition of conditions of bail commensurate with any such risk
• promote transparency in decision making
• ensure the safety of the community, including alleged victims and witnesses
• ensure the bail system does not perpetuate the historical disadvantage faced by Indigenous Australians in their contact with the criminal justice system
• promote public understanding of bail practices and procedures
• reform the bail laws of Victoria.

10. The new Bail Act and regulations should comply with not only the provisions but the intention of the Charter of Human Rights and Responsibilities Act 2006 and the Victims’ Charter Act 2006.

11. The Department of Justice should establish an office of crime statistics and research.

12. Bail decisions should be made on the basis of unacceptable risk. There should be no presumption against bail for any offence in the new Bail Act.

13. The unacceptable risk provision in the new Bail Act should provide:
• fail to attend court as required
• commit an offence while on bail
• endanger the safety or welfare of the public; or
• interfere with witnesses or otherwise obstruct the course of justice in any matter before a court.
• nature and seriousness of the offence
• character, antecedents, background and social circumstances of the accused
• history of any previous grants of bail to the accused, including any grant of bail in the matter currently before the court
• strength of the evidence against the accused
• safety and welfare of the alleged victim or any other person affected by the grant of bail
• period the accused has already spent in custody and the period he or she is likely to spend in custody if bail is refused
• risk of harm—physical, psychological or otherwise—to the accused while on remand, including self-harm or harm by another
• responsibilities of the accused, including primary carer responsibiliti

14. Victoria Police should develop and publish a clear policy setting out the criteria used to determine whether to proceed by arrest or summons.

15. The new Bail Act should require that on charging a person with an offence, police must check whether the person is already on bail. If so, the police may grant bail when it is impracticable to take the accused before a court.

16. Victoria Police training and procedures for bail should promote referral of accused people to support services such as the Court Integrated Services Program (CISP) where referral would be appropriate.

17. The new Bail Act should stipulate that police may grant bail to an accused charged with any offence.

18. Section 464A of the Crimes Act 1958 should be amended by adding the following:
In a recorded interview, interviewing officers must inform suspects before any questioning commences that suspects should not expect that their exercise of a free choice to answer questions put to them during interview will favourably affect their prospects of obtaining bail in the event that they are charged.

19. The section in the new Bail Act providing for police power to grant bail should contain a note referring to the amended section 464A of the Crimes Act 1958.

20. Victoria Police bail guidelines should state that a bail decision by police can only be made by ‘a member of the police force of or above the rank of sergeant or for the time being in charge of a police station’.

21. Victoria Police should develop a clear, concise plain English guide that sets out the powers police have under the new Bail Act and the appropriate procedures to be adopted in a bail application. This guide should be available to all officers who make bail decisions.

22. The importance of up-to-date bail information should be considered by Victoria Police in the current upgrade of the Law Enforcement Assistance Program (LEAP), and by the Department of Justice in the development of E*Justice. The design of these systems should ensure that bail information is current, and that bail status is flagged if an accused is already on bail when charged with another offence.

23. To assist the decision maker to determine the grant of bail, Victoria Police should ensure that the record of prior conviction history includes dates of the commission of offences.

24. Victoria Police should improve its procedures for the collection of criminal record data. The Department of Justice should consider commissioning an audit of the quality of current criminal record holdings.

25. The database that replaces LEAP should record:
• the application for and execution of all warrants by police
• the date and time of execution of a warrant
• whether the subject of a warrant is an Indigenous Australian.

26. Victoria Police should develop a central warrants database accessible to individuals named in the warrants, or their legal representatives, with sufficient information to identify and locate warrants, including:
• the type of warrant
• the date of issue
• the issuing officer
• whether the subject of the warrant is an Indigenous Australian.

27. Victoria Police should ensure the information contained in the new LEAP database and any new warrants register is used only for the purpose for which it was collected.

28. Victoria Police and the Victorian Aboriginal Legal Service (VALS) should formally agree that Victoria Police will notify VALS of any outstanding arrest warrants for Indigenous Australians in cases where it is practicable and reasonable to do so.

29. Victoria Police should formally agree with Victoria Legal Aid that Victoria Police will notify the Grants Division of Victoria Legal Aid of any outstanding arrest warrants for Indigenous Australians, in cases where it is practicable and reasonable to do so.

30. Victoria Legal Aid should institute a procedure for the Grants Division to check for outstanding warrants when assessing an application for a grant of aid to an Indigenous Australian.

31. The agreements between Victoria Police, VALS and Victoria Legal Aid referred to in recommendations 28 and 29 should be subject to similar performance monitoring as the agreement between Victorian Police and VALS about notification of arrest.

32. The new Bail Act should allow the court to issue an arrest warrant upon revocation of bail if the accused has failed to attend without reasonable excuse, provided the proper notice has been served. This should apply even when the accused was previously bailed to a future date.

33. The new Bail Act should allow police to arrest an accused on bail who the police have reasonable grounds to believe is breaking or has broken bail conditions, or is preparing to abscond.

34. The new Bail Act should provide that on the issue of a warrant to arrest after failure to appear, the accused be brought back before the court that issued the warrant, unless it is not in the interests of justice to do so.

35. The Magistrates’ Court Act 1989 should be amended to clarify that if an accused is brought back before a bail justice or magistrate upon execution of an endorsed warrant, the bail justice or magistrate is not bound by that endorsement.

36. Police, bail justices and magistrates should receive training about the effect of endorsements on warrants to arrest.

37. On-the-spot bail should not be introduced in Victoria.

38. Section 10(2) of the Victims’ Charter Act 2006 should be amended to replace the reference to ‘family members of the victim’ with ‘any other person affected by the grant of bail’ and to remove the reference to ‘the attitude of the victim towards the granting of bail’.

39. Section 10(2) of the Victims’ Charter Act 2006 should be amended to provide that where reasonably practicable, police are obliged to inform the victim of a crime against the person that the bail decision maker will take into account the victim’s safety and welfare, where relevant, when determining the grant of bail.

40. The Victims’ Charter Act 2006 should be amended to provide that as soon as reasonably practicable, victims of crimes against the person should be informed of the outcome of bail hearings and any bail conditions designed to protect them or their families. For all other offences, victims should be informed they may request this information.

41. Prosecuting agencies are responsible under section 10(1) of the Victims’ Charter Act 2006 for informing victims of bail outcomes. The mechanics of how this is to occur should be resolved by prosecuting agencies and the Victims Support Agency as soon as possible and a system put in place to ensure victims are informed without delay.

42. The bail justice system should be retained and reformed in accordance with the recommendations in this report. The Department of Justice should commission an independent review of the bail justice program in three years to determine whether it is working well, or whether another system should be instituted. In the long term, an after-hours bail court should be considered.

43. The bail justice provisions in the Magistrates’ Court Act 1989 (sections 120–124) should be repealed and re-enacted in the new Bail Act in an amended form in accordance with the recommendations in this report.

44. The Secretary of the Department of Justice should have responsibility for the administration of the bail justice system.

45. Bail justices should be deployed to bail hearings and interim accommodation hearings through a centralised call-out system, developed in consultation with bail justices, Victoria Police and the Department of Human Services (DHS). The system must be designed to be adaptable to the different needs of different locations and should be administered by the Secretary, Department of Justice.

46. The Department of Justice should institute a reimbursement system for bail justices based on the model used by the Office of the Public Advocate to reimburse Independent Third Persons. Reimbursement should only be made to bail justices who conduct one or more hearings throughout the year.

47. The new Bail Act should limit bail justices’ decision-making role to ‘granting bail’ and ‘authorising continued detention’ of the accused by the police.

48. The new Bail Act should stipulate that bail justices may only authorise the continued detention of the accused to the next business day. If the local court is not sitting that day, the accused must be taken to a court in that region that is sitting.

49. The new Bail Act should provide that bail justices can grant bail to or authorise continued detention of an accused charged with any offence.

50. The Department of Justice should continue to encourage diversity of bail justices by promoting the bail justice program among women, younger adults, and people of diverse cultural backgrounds.

51. Section 120 and 121 of the Magistrates' Court Act should be repealed and re-enacted in the new Bail Act with the following additions:
• Section 120 should be amended so that people are not eligible for appointment as a bail justice unless they have satisfactorily completed a course of accreditation prescribed by the Secretary, Department of Justice.
• Section 121(3) should be amended so that people who are a bail justice by virtue of being a prescribed office holder may not act as a bail justice unless they have satisfactorily completed a course of accreditation prescribed by the Secretary, Department of Justice.

52. The bail justice accreditation course should be designed to ensure bail justices are adequately trained in the legal, procedural, ethical and social context issues involved in bail applications. This must include Indigenous awareness training.

53. The course should be provided at no cost to bail justices.

54. The Department of Justice should provide regular information to bail justices. Material should be available electronically and remain available on a website accessible by bail justices so new appointees can access past material.

55. The new Bail Act should provide that:
• Bail justice appointments be limited to a fixed tenure of three years, with the potential for reappointment.
• To be eligible for reappointment, bail justices must have:
o satisfactorily completed a reaccreditation course
o not unreasonably been unavailable to perform their duties when rostered, or unreasonably been unavailable for the roster.
Beyond these two eligibility criteria, reappointment should be at the discretion of the Attorney-General.

56. Reaccreditation courses should be provided by the Department of Justice at no cost to bail justices.

57. The new Bail Act should require bail justices to attend training as directed by the Secretary, Department of Justice when reasonably required to do so.

58. The new Bail Act should retain the current age limits for appointment and retirement of bail justices: appointment up to the age of 65 years and retirement at 70 years of age.

59. The new Bail Act should stipulate that a person who was a bail justice immediately before the new legislation comes into force should continue to be a bail justice under the new legislation as if the person had been appointed under the new legislation and subject to the new terms and conditions of that legislation.

60. A detailed code of conduct should be introduced for bail justices—to be included as either a schedule to the new Bail Act or as regulations. The Bail Act must state that Bail Justices must adhere to the code of conduct.

61. The code of conduct should be based on the 2004 draft code produced by the Department of Justice and the recommendations in this report, and should include the following:
• bail justices are required to act impartially, with independence and integrity in the performance of their role, and appear to be doing so
• bail justices must conduct themselves appropriately in private and publicly
• bail justices must not be unreasonably unavailable at the times for which they are rostered
• bail justices must limit contact with the media about their bail justice duties to the provision of their decisions and reasons
• bail justices must not arrange or accept transport by police to the police station
• bail justices must not discuss the application with police before the hearing.

62. The provisions in the Magistrates’ Court Act 1989 regarding the removal of bail justices should be repealed.

63. The removal provisions should be enacted in the new Bail Act as follows:
(1) If the Secretary of the Department of Justice is satisfied that a bail justice has breached the code of conduct the Secretary may suspend the bail justice from office.
(2) As soon as practicable after the Secretary suspends a bail justice, the Secretary may, depending on the nature of the seriousness of the breach, either:
a) direct the bail justice to engage in counselling, training or re-accreditation; or
b) nominate a person whom the Attorney-General must appoint to undertake an independent investigation into the bail justice’s conduct.
(3) If the Secretary makes a direction under 2(a), the Secretary must lift the suspension once the bail justice has satisfactorily completed the counselling, training or re-accreditation.
(4) If the Secretary makes a direction under 2(a) and the bail justice without valid excuse does not comply either by not attending or not engaging in counselling, training or re-accreditation, this constitutes grounds for removal.
(5) A person appointed under 2(b) must:
a) investigate the bail justice’s conduct; and
b) report to the Attorney-General on the investigation; and
c) give a copy of the report to the bail justice and the Secretary.
(6) The report under (5)(b) may include a recommendation that the bail justice be removed from office.
(7) After receiving a report under (5)(b) recommending removal, the Attorney-General, after consulting the Secretary, may recommend to the Governor-in-Council that the bail justice be removed from office.
(8) The person who conducted the investigation and the Attorney-General may only recommend that a bail justice be removed on the ground that the bail justice is not a fit and proper person to remain in the office because of dereliction of duty or proved misbehaviour or incapacity which includes, but is not limited to:
a) the bail justice is guilty of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or
b) the bail justice is mentally or physically incapable of carrying out satisfactorily the duties of his or her office; or
c) the bail justice is incompetent or is in neglect of duty; or
d) the bail justice has engaged in unlawful or improper conduct in the performance of the duties of his or her office; or
e) the bail justice has committed a serious, wilful or sustained breach of the code of conduct.
9) The Attorney-General must not make a recommendation under (7) unless the bail justice has been given a reasonable opportunity to make written and oral submissions to the person who conducted the investigation and the Secretary.
(10) In making a recommendation under (7), the Attorney-General is entitled to rely on any findings contained in the report under (5).
(11) If the Attorney-General decides not to make a recommendation under (7):
a) the Attorney-General must inform the Secretary as soon as practicable after receiving the report under (4)(b); and
b) the Secretary must lift the suspension.

64. Detailed guidelines about how to conduct a bail hearing should be created and issued to all bail justices. They should be based on the Royal Victorian Association of Honorary Justices Record of Hearing form.

65. The guidelines should state that on remanding an accused the bail justice must enquire about the accused’s health and wellbeing, note any custody management issues on the remand warrant and notify the custody sergeant.

66. The Code of Conduct should state that guidelines for bail justice hearings should generally be followed.

67. The Department of Justice should develop and implement a policy for secure storage and disposal of notes and records of hearing produced by bail justices as a matter of priority.

68. Bail justice hearings should be conducted in a space which is as separate from the ordinary operation of the police station as possible. All new and renovated police stations should include a room that can be accessed from both the public and secure areas which can be used for bail justice hearings.

69. The Victoria Police policy on the presence of the public or media at bail hearings should be amended. As a general rule interested members of the public and the media should have access to bail justice hearings. Wherever possible hearings should take place in a part of the station easily accessible to the public and arrangements should be made by police to facilitate attendance if requested. Public and media access to the hearing should only be refused if their safety will be endangered or they pose a security risk. As hearings occur in police stations, the decision about whether to admit members of the public or media must remain with the officer-in-charge.

70. The Department of Justice and Victoria Police should institute a policy of no time limit on when the police may call a bail justice to attend a bail hearing outside of court hours. This should be monitored to ensure it is being adhered to by police and bail justices. The Victoria Police Manual should be amended to include consideration of the needs of the accused person in the decision about whether to call a bail justice.

71. The new Bail Act should contain a note to the unacceptable risk provisions advising that some Commonwealth offence provisions stipulate a reverse onus for bail and that they continue to apply.

72. The new Bail Act should empower magistrates to grant bail to an accused charged with any offence.

73. The new Bail Act should contain a provision about the admissibility of confessions or admissions volunteered during a bail application that are not elicited through examination or cross-examination. The general rule should be against admissibility.

74. Bail decision makers should record written reasons for the grant or refusal of bail in all cases and a copy should be provided to the accused and the prosecution. In the Magistrates’ Court this requirement should be satisfied by the use of a ‘tick-a-box’ form, designed with space for any other reasons to be briefly noted in writing.

75. The new Bail Act should provide that failure by a decision maker to record reasons when required to do so does not invalidate the bail decision.

76. The chiefs of each court should consider issuing a practice direction stipulating that an accused is not to be bailed or remanded to a date to be fixed. If the matter cannot proceed on the date stipulated, there should be a bail extension hearing, with the accused not required to attend unless the prosecution opposes extension or the accused is seeking a bail variation.

77. Generally the new facts or circumstances rule should continue to apply. However, the new Bail Act should stipulate that an accused may be represented at a bail application made within two court-sitting days after arrest without having to show new facts or circumstances on a subsequent application.

78. The new Bail Act should continue to allow unrepresented accused people to apply for bail without restriction.

79. The new Bail Act should specifically refer to the right of accused people to make further application for bail to the Supreme Court.

80. The new Bail Act should provide that an accused and the DPP each have the right to appeal the decision of a single judge of the Supreme Court on a director’s appeal to the Court of Appeal.

81. The new Bail Act should clarify that to lodge a director’s appeal, the DPP must be satisfied that it is in the public interest and the:
• amount of any surety is inadequate;
• conditions of bail are insufficient; or
• bail decision contravenes or fails to comply with the Bail Act.

82. Sections 18 and 18A of the Bail Act should be redrafted in the new Bail Act to clearly set out the basis for an application under each section and the role of the court. The headings of these sections should clearly express their contents.

83. Section 18 currently covers further applications for bail, variation of bail, revocation of bail, appeals by the DPP from refusals to revoke bail, and notification to sureties. These matters should be separated into different sections in the new Bail Act and given clear headings.

84. The sections in the new Bail Act covering the matters in section 18 of the Bail Act (except for appeals by the DPP in section 18(6A)) should express in plain English that applications made pursuant to those sections are hearings de novo.

85. The new Bail Act should make it clear that once a directors’ appeal is heard and an order is made quashing the original order, the courts’ consideration of bail is a hearing de novo.

86. The processes for bail pending appeal and bail pending retrial should be clarified and included in the new Bail Act. The relevant sections of the Crimes Act 1958 should be repealed accordingly.

87. An application for bail pending appeal should be heard by a single judge of the Court of Appeal. Rule 2.29(3) of the Supreme Court (Criminal Procedure) Rules 1998 should be amended accordingly and a practice note issued to this effect. The right to appeal to the full court (three judges) should be retained.

88. When the Court of Appeal allows an appeal and orders a new trial, the court should proceed to determine bail provided that the material before the court is sufficient to make that decision. The application should be heard by a single judge of the bench which allowed the appeal immediately or as soon as practicable after the appeal is determined. If the material is not sufficient to make a decision, the matter should be remitted to the court where the applicant is to be retried.

89. The new Bail Act should allow defence-initiated variations of minor bail conditions to be made by consent with each party (applicant and respondent) filing a statement with the court. If there are any sureties, the police informant should be responsible for contacting them to obtain their consent to the variation. In the informant’s statement filed with the court, the informant should state that he or she has contacted any sureties and that they consent to the variation. The court can make the variation on the papers in chambers. The variation will come into effect at the time the accused (and any surety) attends at the registry and signs the new undertaking. If the magistrate does not think the variation is appropriate, it will be listed for hearing in court.

90. The new Bail Act should provide that bail may be extended when the accused is not present in court for ‘sufficient cause’.

91. The new Bail Act should state that an accused is not guilty of the offence of failure to answer bail if the accused appeared at another court, so long as that appearance was by prior arrangement with the court to which the accused was bailed.

92. There should be no distinction between general and special conditions of bail in the new Bail Act. The section of the new Act dealing with conditions of bail should:
• list the order in which conditions should be considered
• list the purposes for which conditions may be imposed
• require that conditions imposed be no more onerous than necessary, and reasonable and realistic, taking into account the individual circumstances of the accused person.

93. The new Bail Act should require decision makers to consider imposition of bail conditions in the following order:
• own undertaking without other conditions
• own undertaking with conditions about conduct
• with a deposit or bail guarantee condition

94. The new Bail Act should stipulate that bail conditions may only be imposed to reduce the likelihood that an accused person will:
• fail to attend court as required;
• commit an offence while on bail;
• endanger the safety or welfare of the public; or
• interfere with witnesses or otherwise obstruct the course of justice in any matter before the court.

95. The new Bail Act should require that bail conditions imposed be no more onerous in nature and number than necessary to secure the purposes listed in Recommendation 94.

96. The new Bail Act should stipulate that bail conditions imposed must be reasonable and realistic taking into account the individual circumstances of the accused.

97. Training for magistrates, judges, police and bail justices should discourage the use of abstinence conditions. Information should be provided in training about the efficacy of support programs in achieving the purposes of bail, such as the results achieved by CISP and community-based programs such as the Northern Assessment and Referral Treatment Team.

98. There should be a Note to the conditions section in the new Bail Act referring to section 12 of the Charter of Human Rights and Responsibilities Act 2006 regarding freedom of movement, and section 7(2) which sets out how human rights may be limited, particularly the reference to ‘any less restrictive means available to achieve the purpose’.

99. The following provision should be included at the end of the unacceptable risk test in the new Bail Act: A decision maker can consider the conditions that may be imposed to reduce risk factors when making a bail decision.

100. The new Bail Act should require the court to review the conditions set by police or bail justices at the first mention date to ensure they are appropriate, and are no more onerous than necessary to secure one or more of the purposes of bail.

101. Victoria Police should develop a plain English document that informs accused people that they may seek to have any conditions varied by the court as soon as is reasonably practicable. This should be provided to accused people by police and bail justices along with their undertaking of bail form.

102. A new offence of breaching a bail condition should not be created.
Chapter 8

103. The term ‘bail guarantor’ should replace the term ‘surety’ in the new Bail Act.

104. Bail guarantees as a condition of bail should be retained in the new Bail Act.

105. Deposits as a condition of bail should be retained in the new Bail Act.

106. The new Bail Act should require bail decision makers to consider:
• the accused’s means when determining a) whether to impose a deposit condition and b) the deposit amount
• alternative conditions that will secure the factors listed in recommendation 7.3 if satisfied the accused will not be able to comply with a deposit condition.

107. The new Bail Act should require that to qualify as a bail guarantor, a person must be aged 18 or above, not under any disability in law and must have the money or assets to make the necessary payment if required.

108. The new Bail Act should provide that the following matters may be taken into account when considering the suitability of a proposed bail guarantor:
• financial resources
• character and any previous convictions
• proximity to the accused (whether by kinship, residence or otherwise)
• any other relevant matters.

109. The new Bail Act should provide that if the prosecution or police object to a proposed bail guarantor, the matter should go back before a judicial officer to determine the bail guarantor’s suitability.

110. The new Bail Act should require that before undertaking to be bail guarantor for an accused, a proposed bail guarantor should be required to:
• provide proof of identity
• attest to certain matters (those currently in section 9(2) of the Bail Act 1977) in the Affidavit or Declaration of Justification.

111. The new Bail Act should require the bail decision maker to consider:
• the bail guarantor’s means when determining a) whether to impose a bail guarantee condition and b) the guaranteed amount
• alternative conditions that will secure the factors listed in recommendation 7.3 if satisfied the accused cannot provide a bail guarantor with sufficient means to comply with the undertaking.

112. The new Bail Act should not provide for the lodging of savings passbooks, deposit stock-cards or other documents for operating an account, together with a withdrawal authority, to secure a bail guarantee condition.

113. All courts should provide written materials to prospective bail guarantors to inform them about their rights and obligations. The materials should contain a checklist which bail guarantors are required to sign to confirm their understanding of their rights and obligations. The materials should be available in different languages.

114. The courts should establish guidelines for registrars and other relevant officials requiring the provision of sufficient information to bail guarantors so that they:
• understand their rights and obligations
• understand the accused’s bail conditions.

115. The new Bail Act should contain a clear procedure for bail guarantors to sign the Undertaking for Bail form and the Affidavit or Declaration of Justification for Bail form at a venue other than the one where the accused signs the Undertaking for Bail form.

116. The new Bail Act should stipulate that bail justices do not have the power to impose a bail guarantee condition.

117. Bail justices’ training should include information on their existing power to impose a condition that a responsible person collects the accused from the police station.

118. The new Bail Act should stipulate that the right of a bail guarantor to apprehend the accused is abolished.

119. The new Bail Act should provide that when a person on bail or the police or prosecuting agency make an application for variation of a bail condition, the other party and any bail guarantor must be given notice of the application. The notice to the bail guarantor must state:
• bail guarantors may attend the hearing or may provide affidavit evidence of their consent to the proposed variation before the hearing
• failure to attend or to provide an affidavit may result in the application being refused.

120. The new Bail Act should contain the bail guarantee forfeiture provisions. The relevant sections of the Crown Proceedings Act 1958 should be repealed accordingly.

121. The new Bail Act should stipulate that:
• the guaranteed amount should only be forfeited when the accused has failed to appear in court
• the court should only order forfeiture of the guarantee when it is satisfied there is no reasonable excuse for the accused’s failure to appear
• the bail guarantor should retain the right to seek variation or withdrawal of the forfeiture order.

122. The current maximum penalty of two years imprisonment for failure by a bail guarantor to pay the guaranteed amount upon forfeiture should not be increased.

123. Section 346 of the Children Youth and Families Act 2005 (CYFA) should be amended so that the requirements of subsections 7 and 8 also apply to hearings before bail justices.

124. Section 345 of the Children, Youth and Families Act 2005 should be amended. The heading should be amended to read ‘Children to be proceeded against by summons’. The section should be amended to provide for a presumption in favour of proceeding against children by summons rather than arrest and charge, regardless of whether the proceedings are commenced by police directly charging the accused, or by filing a charge with the court as currently provided for in the section.

125. The following addition should be made to section 345 of the Children, Youth and Families Act 2005 : If it appears to a magistrate that the informant has used the arrest and charge procedure inappropriately against a child, the magistrate should question the informant on oath as to why the child was not summonsed.

126. Victoria Police should develop a clear, published policy detailing the criteria used to determine whether to proceed against children by caution, arrest or summons. The policy should contain a preference for the use of caution where possible, and summons except where arrest is justified. The policy should take into account the recommendations of the Royal Commission into Aboriginal Deaths in Custody relating to arrest of children, particularly Recommendation 239.

127. The provisions of the Children, Youth and Families Act 2005 that apply to bail should be moved to the Bail Act, and the Children, Youth and Families Act 2005 should contain a note referring to the provisions in the Bail Act.

128. The Bail Act should contain a provision based on section 362 of the Children, Youth and Families Act 2005 that requires a decision maker to consider child-specific factors when making a bail decision for a child. In addition to the factors that must be weighed up by a decision maker under the unacceptable risk test, a decision maker should have regard to:
• the need to consider all other options before remanding the child in custody;
• the need to strengthen and preserve the relationship between the child and the child’s family;
• the desirability of allowing the child to live at home;
• the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
• the need to minimise the stigma to the child resulting from a court determination
• the likely sentence should the child be found guilty.

129. The legislative provisions about bail conditions recommended in Chapter 7 should apply to children as well as adults. However, the Bail Act should contain a specific provision for the imposition of conditions on children. When considering the bail conditions to be imposed on a child, a decision maker must consider:
• the need to strengthen and preserve the relationship between the child and the child’s family;
• the desirability of allowing the child to live at home;
• the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
• the need to minimise the stigma to the child resulting from a court determination.

130. A child-specific bail support program should be established in the Children’s Court. It should be developed and administered by CISP, but funded by DHS. Protocols for information sharing should be put in place between DHS and CISP to ensure an integrated service for children. As with the service in the Magistrates’ Court, culturally appropriate support should be provided for Indigenous children.

131. There should be no change to the current legislation regarding undertakings by parents or another person.

132. The new Bail Act should provide magistrates and judges with the power to remand a young person (18–20) to either a Youth Justice Centre (YJC) or a Youth Unit within an adult correctional facility following an assessment by Youth Justice or Corrections Victoria. The placement decision should reside with the decision maker, taking into account the assessment. If a young person is assessed as suitable for placement in either facility and the decision maker remands the young person elsewhere, the decision maker should be required to provide reasons for that decision.

133. Youth Justice and Corrections Victoria should develop and distribute clear criteria for the assessment of a young person’s suitability to be remanded to a YJC or Youth Unit.

134. The Bail Act should include an administrative power allowing for the transfer of a young person to an adult facility if they are subsequently found to be unsuitable for placement in a YJC, similar to that in section 469 of the Children, Youth and Families Act 2005 .

135. To ensure the Aboriginal Community Justice Panel (ACJP) program is able to provide an effective service to Indigenous Australian accused people Victoria Police and the Department of Justice should:
• establish additional ACJPs
• ensure each ACJP has at least four active members
• provide further training to ACJP members
• provide additional funding to the ACJP program.

136. The Victorian Aboriginal Legal Service should receive further funding to operate the Client Service Officer (CSO) program and to provide further training to CSOs, particularly on the operation of the bail system.

137. The Department of Justice should ensure that there is an Aboriginal Liaison Officer (ALO) or a Koori Court Officer in all court regions.

138. Koori Court Officers should also fulfil the role of an ALO in relation to bail. This addition should be monitored by the Department of Justice to ensure the workload is sustainable and the roles do not conflict. If the workload is not sustainable or the roles conflict, separate ALOs should be employed.

139. The Indigenous Issues Unit of the Department of Justice and the Department of Human Services should work together to provide more accommodation options for Indigenous Australians on bail throughout Victoria. The accommodation should be culturally appropriate.

140. The Indigenous Issues Unit of the Department of Justice and the Department of Human Services should work together to develop more drug and alcohol programs for Indigenous Australians on bail. The programs should be culturally appropriate.

141. The Indigenous Issues Unit of the Department of Justice should establish a mentoring program based on the Djarmbi–Tiddas Mentoring Program model for Indigenous Australians on bail.

142. Training for magistrates, police and bail justices on Indigenous issues should cover specific issues facing Indigenous women and their specific support needs.

143. The new Bail Act should provide that when making a decision involving an Indigenous Australian, bail decision makers must take into account the needs of the accused as a member of the Indigenous community.

144. The new Bail Act should contain a note to the Indigenous-specific provisions referring to the Commonwealth legislation which deals with the relevance of customary law and cultural practice to the determination of bail for accused people charged with Commonwealth offences.

145. The police should be obliged to investigate whether a person who they arrest is a primary carer for children or other dependants. To ensure that police fulfil this obligation, Victoria Police should develop a primary carer checklist similar to the reception assessment form used at the Dame Phyllis Frost Centre.

146. If a detained person is a primary carer for children, the police should be obliged to ensure that appropriate care arrangements are in place for the children. If appropriate care arrangements are not in place, the police should be obliged to contact DHS to ensure such arrangements are made. Victoria Police should develop a protocol with DHS to this effect.

147. Public drunkenness should be decriminalised as an offence in line with the recommendation of the 2001 Parliamentary Inquiry into Public Drunkenness.

148. The Department of Justice and the DHS should consider allocating more crisis and longer term accommodation for accused people on bail.

149. DHS should provide more supported accommodation for accused people on bail who have multiple needs.

150. DHS should review the number of places available in residential drug rehabilitation services to ensure that it is meeting demand.

151. Police, criminal lawyers, bail justices, magistrates and judges should all receive ongoing training about working with cognitively impaired accused people, victims and witnesses.

152. If an ITP or other person attends to assist an accused at the record of police interview, the informant should immediately flag this on LEAP to ensure that an ITP or other person is present whenever the accused is interviewed by police in future.

153. The Office of the Public Advocate should provide Independent Third Persons (ITPs) for accused people with cognitive impairment at bail justice hearings to assist them to understand the bail hearing process and the conditions of bail, or the reasons for remand..

154. There should be clear protocols between the Office of the Public Advocate, Victoria Police and the Department of Justice as to the role of ITPs at bail justice hearings. Training for ITPs, police and bail justices should ensure they are aware of the protocols.

155. DHS should develop and fund a service like the Central After Hours Assessment and Bail Placement Service for people with a cognitive impairment who are arrested by police after hours.

156. Victoria Police and DHS should review why section 16(3) of the Mental Health Act 1986 is not being applied to transfer accused people to a mental health facility.

157. The Attorney-General should consider establishing a review which identifies the issues confronted by people with cognitive impairment in the criminal justice system and makes recommendations for legal and procedural changes.

Related Project: 
Publication Process: 

Timeline

Related links

Main menu

Back to top