Bail - Fact Sheets
These fact sheets were produced for the launch of the commission's Review of the Bail Act: Final Report.
Key Recommendations
- All decision makers can determine bail for all offences, although remand by police officers must continue to be reviewed by a court or bail justice as soon as possible.
- Written reasons for refusing or granting bail should be given to the accused and prosecution for every case—in the Magistrates’ Court this can be a tick-a-box form.
- A new Act should refer to specific decision makers and their powers, rather than using the general term “court”.
- Decision makers should consider victims’ safety and welfare in their bail decision
- Bail decision makers should consider the needs of Indigenous accused as members of the Indigenous community.
- Police to establish and issue guidelines about the decision to arrest or summons.
- Police be allowed to grant bail when courts are open, unless the person is already on bail.
- Change the term surety to “bail guarantor” and use “guaranteed amount” to describe the money or assets that are put up to ensure the accused person attends court.
- Courts be required to check a bail guarantor’s ability to pay the guaranteed amount.
- Improved processes for Registrar’s to check bail guarantor’s suitability.
- Decision makers should set guaranteed amounts appropriate to guarantors’ ability to pay.
- Guarantors should receive information and explanation about the process in a language they can understand.
- Public drunkenness should be dealt with through sobering-up centres rather than jail.
- More emergency housing is needed so people cannot be denied bail because they don’t have somewhere to live.
- Support services should be offered to Indigenous Australians that acknowledge and respect their culture.
- Decision makers should receive training in the best way to deal with Indigenous Australian, new migrants and people with mental illness or brain injury.
- Children and young people should be recognised specifically in the Bail Act.
- Police should develop a policy to issue a caution or summons to children rather than arrest them, unless they have good reason to.
- There should be a court-based support program for children on bail.
- Courts should be able to remand a young person to a Youth Justice Centre or Unit if it would be more suitable than adult jail.
- Police should check if the person they arrest has children, and if so arrange care for them.
- Support services for people on bail that address the problems that may have led to alleged offending should be well funded and should be used by police more often.
- Victims of crime against the person should be told about bail hearing outcomes as soon as possible.
- The Department of Justice should take control of the education and administration of bail justices.
- Active bail justices should be reimbursed for their expenses and receive accreditation training.
- The media should have access to bail justice hearings unless safety issues prevent it.
Removing reverse onus
Our laws assume that everyone is entitled to bail—that there is a presumption for bail. Over the years the law has changed so that for some offences there is a presumption against bail—these are called reverse onus offences. This does not mean that bail is denied for these offences but that accused people must argue why they should be given bail rather than prosecutors arguing why they shouldn’t receive bail.
There are no clear rules about why reverse onuses apply to some offences and not others. For instance, a reverse onus applies to murder and aggravated burglary but not rape and attempted murder.
Reverse onus offences give the appearance of being “tough on crime” and some people may be critical of our decision to remove reverse onus offences for this reason. However, there is no link between the level of remand and the existence of reverse onus offences. In South Australia there are no reverse onus offences but remand levels are the second highest in the country. Victoria currently has reverse onus offences but has one of the lowest levels of remand.
|
State/territory |
Reverse onus offences |
Remand levels* |
|
Victoria |
Yes |
17 |
|
Tasmania |
No |
25 |
|
Western Australia |
Limited** |
36 |
|
New South Wales |
Yes |
38 |
|
Queensland |
Yes |
39 |
|
South Australia |
No |
41 |
|
Northern Territory |
Yes |
97 |
* number of prisoners per 100 000 adult population (2004).
** reverse onus only applies to people who commit a serious offence while on bail for another serious offence.
If reverse onus offences are removed from the Victorian Bail Act, people charged with some federal offences will still be subject to reverse onus tests: people charged with terrorism offences or drug trafficking will still have to argue why they should receive bail.
Current reverse onus offences in Victoria include:
• indictable offences alleged to have been committed while the accused was awaiting trial for another indictable offence
• indictable offences where accused threatens to use a firearm, offensive weapon or explosive
• stalking (in limited circumstances)
• aggravated burglary
• murder
• arson causing death
• drug trafficking
• treason
• breaching an intervention order (in limited circumstances)
• cultivation of a narcotic plant, attempting to cultivate a narcotic plant or conspiring to cultivate a narcotic plant
Key Statistics
• Police make more than 90% of bail decisions, bail justices less than 5% and courts 5%.
• Of people accused of committing an offence, about half receive a summons to appear in court and about half are charged and then bailed or remanded.
• Of first applications for bail, magistrates tend to grant about ¾ and remand ¼, while bail justices tend to refuse about 80% and grant about 20%. Bail justices are typically called in when police refuse bail. A person remanded by a bail justice may subsequently be bailed by a court.
• The top ten offences for failure to appear in response to bail in 2005–06 were: theft from shop; theft; burglary; criminal damage; driving while disqualified; possessing cannabis; driving while suspended; recklessly causing injury; theft of a motor vehicle; breaching an intervention order.*
• The Supreme Court typically has one or no cases of failing to appear in response to bail every year.
• The Bail Act was written 30 years ago, before the widespread use of plain English drafting.
• From 2000–01 to 2004–05, 26% of bail applications decided by police were for public drunkenness.
• Victoria’s remand rate has increased from 9.7 people per 100 000 in 1994 to 19 people per 100 000 in 2007.
• Only one recorded case in Victoria of a surety being sent to jail for failing to pay the guaranteed amount.
• In 2004–05 police made 87% of bail decisions for children, the Children’s Court 12% and bail justices 1%.
• Police are twice as likely to use arrest rather than summons or caution for an Indigenous child than a non-Indigenous child.
* These statistics do not tell the whole picture because we only have the offence information for warrants that are finalised. In the year under review close to half of the warrants were not finalised.
Bail Glossary
Bail is the system our courts use to make sure someone turns up in court on a particular date.
Bail conditions are imposed on an accused person who is released on bail to strengthen the likelihood they will attend court.
Bail justices are volunteers who make bail decisions at night and on weekends when courts are not open.
Cognitive impairment includes, but is not limited to, impairment due to intellectual disability, mental illness, dementia and acquired brain injury.
Intervention orders restrain the behaviour of a person in some way for a set or indefinite period. Breaching an intervention order is a criminal offence.
Plain English is the style of writing that avoids jargon, long sentences and passive voice.
A police informant is the officer in charge of the investigation of the accused.
When someone is remanded they are held in custody until their next bail application or first hearing in court.
When accused people are charged with a reverse onus offence they must argue why they should receive bail. For other offences, prosecutors must argue why accused people should not receive bail.
To show cause means to provide good reasons.
A surety is a person or people who undertake to ensure an accused will appear in court and abide by their other bail conditions. The surety puts up security, such as money or title to a residential property, which can be taken by the court if the accused fails to appear.