Bailed Up

Stories about bail have abounded in the media recently, including concerns about delay and its impact on bail hearings, sureties, and lengthy waits on remand.

All of these issues are already on the radar in the Victorian Law Reform Commission’s review of the Bail Act.

The Commission released the Review of the Bail Act Consultation Paper in November 2005 and received 40 submissions from interested groups and individuals in response to some or all of the questions posed.

Initial consultations to inform the paper were held last year with courts, police, prosecutors, legal services and professional organisations, and included trips to Moe, Mildura, Geelong and Shepparton.

More consultations were held in April and May this year with Victoria Police, victim representatives, bail justices, magistrates, community legal centres, professional associations, bail support programs, government departments, prosecutors, academics, Indigenous representatives, support services and judges.

These consultations picked up on the main points raised in submissions to the consultation paper and other issues that had not been addressed.

Once again, submissions and consultations expressed overwhelming support for the need to rewrite the Bail Act in plain English. This was also the conclusion of the previous Victorian law reform commission’s 1992 review of the Bail Act.

A lot of criticism was also levelled at the bail justice system. Complaints included that bail justices were not adequately trained, bail justices did not always apply the Act correctly, hearings in police stations were inappropriate, and bail justices did not always act impartially. Submissions from many lawyers’ groups supported the introduction of a court-based after-hours system for bail to replace the current bail justice arrangement.

In response, bail justices who contacted the Commission said the Department of Justice had let them down when it came to training and updates on the Act and that accusations of impartiality were unfair as changes in the past few years had mostly solved that problem.

There were also some concerns about the treatment of certain groups of people when bail is being decided. People with a cognitive impairment, for example, are sometimes seen as a greater risk of not turning up at court and so some submissions were concerned that these people are denied bail more often than others.

Likewise, the focus on a fixed address for the accused in bail decisions was seen by some people to discriminate against Indigenous Australians who may be less likely to live in one place. Putting in place appropriate support services was seen as more important than accommodation. Culturally inappropriate bail conditions were a common complaint from Indigenous representatives, who said such conditions set an accused up to fail.

Many submissions urged the inclusion in the Bail Act of sections dealing with children and young people, similar to the provisions in the Children and Young Persons Act 1989. Bail support services and supervision were seen as important measures for children and young people, as was transparency in bail conditions so people are not being punished before they are found to be guilty.

There was general agreement with the need to simplify the tests for reverse onus offences, and in particular that the current show cause and exceptional circumstances tests were difficult to apply and explain to the parties involved. Many submissions and consultation participants favoured the abolition of reverse onus provisions in favour of a presumption for bail and single test of unacceptable risk which would encompass a broader range of issues than is currently the case, however, the police and Office of Public Prosecutions opposed any change.

Other issues included a general disagreement with the suggestion that breaches of bail conditions become a criminal offence, calls for more bail support services outside of Melbourne, and the need for advocates for people with cognitive impairment during bail hearings.

A small brochure directed at victims of crime was distributed through the network of counselling services that cater to them. No submissions were received from individual victims of crime directly, but some representative services did respond and attended a roundtable on victims’ issues.

They generally supported legislative requirements that police seek victims’ views about bail and that police be required to inform victims of the outcomes of bail hearings. Some also believed it should be harder for people accused of violent crimes to receive bail because of the impact this has on victims.

The Commission plans to finish the final report by the end of this year and hand it to the government soon after.

This article was published in the Law Institute Journal in July 2006.

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