Bail Act Review
Tabled in Parliament Date:
The bail system in Victoria has an impact that reaches beyond the confines of the legislation and is a crucial element in the delivery of justice. For all this, the Bail Act 1977 had neither been reviewed nor updated since it came into operation in September 1977.
In November 2004, the Commission was asked to review the practice and law of the Bail Act 1977 (Vic). This followed the Commission’s community law reform inquiry into failure to appear in court in response to bail. In November 2005, the Commission released a consultation paper, a targeted booklet for victims of crime, and a call for submissions. Forty-nine submissions were subsequently received.
Tabled in Parliament on 10 October 2007, the Commission’s final report made 157 recommendations aimed at ensuring the Act functions simply, clearly and fairly. Major recommendations included:
- the Bail Act be rewritten in plain English
- removing the requirement in relation to some offences that a person must convince the court that they should get bail and making the sole test for bail whether the person poses an unacceptable risk to the community
- a requirement that bail conditions be no more onerous than necessary and reasonable and are realistic taking into account the circumstances of the individual
- greater consideration of the victims of crime.
- Terms of reference received
- Submissions and consultations
- Submissions closed
- Final Report
- Tabled in parliament
What was recommended?
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.