Bail Amendment (Stage Two) Bill 2017

Debate resumed from 8 February; motion of Ms MIKAKOS (Minister for Families and Children).

Mr RICH-PHILLIPS (South Eastern Metropolitan) (10:16:49) — I am pleased to make some remarks this morning on the Bail Amendment (Stage Two) Bill 2017. It is an unusual title for a bill but it reflects the fact that we have seen reforms to bail provisions come forward in two tranches over the course of the last 12 months. These changes are on the back of the review of bail which was undertaken by former Justice Paul Coghlan following the events in Bourke Street at the beginning of last year.

It is interesting to reflect on the context of the events in Bourke Street last year and the way in which they have been described. In reference to this legislation and indeed in reference to the Coghlan bail review which was undertaken it talks about a tragedy which occurred in Bourke Street in 2017. In reality that needs to be put into context. The events in Bourke Street were not a tragedy in the sense of a tragic event. It was the slaughter of six people — the murder of six people — and it was allegedly done by somebody who was on bail at the time. While the language has been dressed up around tragic events and tragedies in Bourke Street, it was a circumstance which, with the alleged offender, could have been avoided. This prompted a substantial outcry in the community at the time the events occurred. That forced the Premier to make statements about his government suddenly being interested in reforming bail. This was in the context of a Premier and a government which had in fact watered down bail in this state prior to that, and I will come to that shortly.

We had the outrage in the community about the events in Bourke Street and the Premier's commitment to pursuing bail reforms as a priority, and since then we have seen things largely stall. We had the Bail Amendment (Stage One) Bill 2017 last year, which is not proposed to come into effect until the first of July of this year, and then we had the second tranche of legislation which has now reached this house after a slow start earlier this year.

This bill is the second bill that has arisen from the Coghlan review, and it picks up a number of the recommendations from the Coghlan review. I will go through those elements shortly. But it is very much the coalition's view that the government has not pursued the type of wholesale reform of bail that the Victorian community expects. What we have not seen here is a clean rewrite of the Bail Act 1977, which is interesting in the context that the Bail Act is an act that dates from 1977. It is one of the few statutes that surrounds the criminal law and the justice system that has not been subject to a wholesale rewrite in the last decade. Most of the statutes around our courts and the justice system have been the subject of clean rewrites, and the Bail Act is one of the few exceptions.

The shadow Attorney-General in the other place, Mr Pesutto, has said that a future coalition government would undertake a clean rewrite and update of the Bail Act. It is interesting that, despite the commitment given by the Premier to reform bail on the back of Bourke Street and on the back of other perhaps less serious but more recent incidents that we have seen, that wholesale rewrite and update of the Bail Act has not been and is not being undertaken. So what we have in this bill today, which is stage two of the package the government has brought forward, are a number of piecemeal reforms which individually we believe have merit, though some of the detail I will look to explore when the bill reaches committee later this day.

The key provisions of the bill include clause 5, which requires bail decision-makers to consider surrounding circumstances, including offence seriousness, criminal history and whether the accused was on bail or parole at the time of making a bail decision. Clause 4 defines a vulnerable adult as a person aged 18 years or more who has a cognitive, physical or mental health impairment that causes them to have difficulty understanding their rights or making and communicating a decision. That definition is a critical one that I will seek to explore with the minister at some length when the bill gets into committee, because that definition of vulnerable adult is important through a number of these provisions and the way in which these amendments are proposed to work. In terms of the application of that definition, particularly as it applies to the capacity for police to remand people, it is one where there is going to need to be a lot of clarity provided to the officers using it as to how that provision is applied, so that is something for which we will be seeking some extensive understanding from the minister as to what is required and intended with respect to that provision.

Clause 7 of the bill replaces the existing tests for bail with new unacceptable risk, show compelling reasons and show exceptional circumstances tests. These go to the criteria which will be required for bail to be granted in the cases of someone accused of schedule 1 or schedule 2 offences. Again, the circumstances and the criteria which are set down in those tests are broad, and one of the questions there relates to the weighting of the criteria, which are set down in each of the sets of circumstances, and how those criteria are assessed relative to one another in reaching a decision whether to grant bail or not. If I was to give an example, I would refer in this case to clause 5, because the principle is the same. Clause 5 talks about surrounding circumstances and refers to things such as:

the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

the strength of the prosecution case;

the accused's criminal history;

the extent to which the accused has complied with the conditions of any earlier grant of bail;

whether, at the time of the alleged offending, the accused—

was on bail for another offence; or

was subject to a summons to answer to a charge for another offence; or

was at large awaiting trial for another offence; or

was released under a parole order; or

was subject to a community correction order …

et cetera; whether they were subject to a family violence intervention order or a domestic violence order; and the person's personal circumstances, associations, home environment, background et cetera.

What is not clear from that is what weighting and priority should be accorded to those circumstances, because obviously a decision-maker in respect of a bail matter could reach a very different decision on a particular case depending on the weighting and the priority that are given to those individual circumstances. And that also follows through in the tests which are established in clause 7. We will be seeking for the minister to make clear to the house how the government intends those relative factors to be considered at the various decision-making trigger-point scenarios as they arise.

Clause 14 allows police to remand a person in custody for up to 48 hours until the court is available, except for children, Aboriginal persons and vulnerable adults. This provision does trigger the question of how those exemptions will be applied and the judgements that the responsible Victoria Police officer, who is either a sergeant or the officer in charge of the station, is required to consider in exercising those exemptions. The bill is drafted in such a way that it is the opinion of the officer that applies when determining whether the exemptions come into force, so obviously critical to that is how the officer should form an opinion with respect to those circumstances. That is another area where we will be seeking for the minister to be able to provide considerable input as to the application.

Clause 18 allows for courts to grant or refuse bail for accused persons appearing on summons on application by the prosecution or on their own motion. Clause 20 provides that only a court may grant bail to a person accused of a schedule 2 offence, other than lower level schedule 2 offences, who is already on two or more bail undertakings. I note again that with the exemptions it does not again apply to children, Aboriginal persons or vulnerable adults.

One of the more interesting clauses in the bill is not directly related to bail, and that is clause 29, which creates a presumption of cumulation in relation to any period of detention imposed for escape from or property damage in a youth justice facility. This is a very interesting provision because this house in particular is aware of the way in which the government and Ms Mikakos have lost control of the youth justice system in Victoria. I know Ms Crozier is very, very aware of what has been occurring with Ms Mikakos. We see the performance in this house, where she is increasingly losing her grip on the portfolio. The stress is showing, and we are seeing her increasing inability to manage the portfolio in this house, let alone manage the portfolio in the community. The fact that we are now seeing this change being imposed by virtue of clause 29 in providing for the presumption of cumulation is reflecting the fact that the government has a serious problem in youth detention and knows it has a serious problem in youth detention and that we cannot have confidence that Minister Mikakos is in a position to address those problems. That is an unusual provision in the suite of other changes which are being implemented by virtue of the Bail Amendment (Stage Two) Bill.

As I said at the outset, these changes have been a long time coming. The period from the event in Bourke Street which triggered the Premier needing to make a public statement at the beginning of last year, when he had previously been opposed to reforms and the tightening of bail, and in fact had loosened the bail provisions in this state, to the Coghlan review and now to seeing legislation in the house is an extended period of time for something that was put forward as a priority and for which the amendments themselves are relatively discrete and straightforward in what they seek to do. What we have seen with the Bail Amendment (Stage One) Act 2017 is a default commencement date of 1 July this year, and what we are seeing with the bill the Parliament is currently dealing with is a default commencement date of 1 October this year. This side of the house believes that these reforms have taken long enough to get to Parliament, given the Premier's commitment made last year, and the commencement of their implementation should be brought forward. We will be proposing amendments when this bill gets to committee, and I would ask that they be circulated at this point in time.

Opposition amendments circulated by Mr Rich-Phillips (South-Eastern Metropolitan) pursuant to standing orders.

Mr RICH-PHILLIPS — The intent of these amendments is to align the commencement dates of the stage one act and the stage two bill to provide that, with the exception of early proclamation, they will come into effect on 30 March. We believe that enough time has elapsed, that enough water has gone under the bridge and that these changes need to be in place. The government has failed to do that with the drafting of the stage one act and this stage two bill, and we believe it is appropriate that the implementation of these provisions be brought forward to 30 March. Accordingly, I will seek by an instruction to the committee at the conclusion of the second-reading debate to provide for an expansion of the scope of the bill to allow amendments to the stage one act to bring forward the default commencement to 30 March and also to amend the commencement date of this bill to 30 March so that both those stage one and stage two packages will come into effect no later than 30 March rather than 1 July and 1 October, as is currently proposed by this government. As I said, this has taken too long.

These changes are relatively straightforward and relatively mechanical in what they do. On the whole the coalition believes they are positive moves. We also believe they do not go far enough. We have been very clear in our view of where the bail framework in this state should head. As I said before, the shadow Attorney-General in the other place, Mr Pesutto, has indicated that a coalition government would undertake a clean rewrite of the Bail Act, which is something we have not seen and I am surprised we have not seen, given the other wholesale rewrite of statutes around the justice portfolio that has taken place in the last decade. We are still using the Bail Act, the principal act, which is 40 years old. Mr Pesutto has made a commitment that we would undertake a rewrite of the Bail Act.

We have also set down some very clear principles around the application of bail. The first is with respect to serious violence offences, which are of increasing concern to the community. I spoke earlier this week on the issue of the Justice Legislation Amendment (Victims) Bill 2017. There is a concern in the community about increasing offences of violence against the person. The home invasions, the carjackings that we hear about and the trashing of community facilities like we saw in Tarneit recently are matters of concern to the community, and they are of even greater concern to the community when the community learns the perpetrators or alleged perpetrators of those crimes are people who are on bail, were not remanded for other offences, were released on bail and have gone on to commit subsequent offences.

One of the first principles that a coalition government would implement with respect to bail is that in a case of an allegation of a violent offence the presumption is one of remand, not of bail. It would only be in exceptional circumstances where a person accused of a violent offence would be the recipient of bail, rather than a default position of a presumption of bail unless circumstances dictate remand. That would be a substantial change in the policy settings for bail in this state — the presumption that if you commit or you are accused of committing a serious offence, you would be subject to remand.

The second policy position that we have articulated relates to the government's earlier watering down of the Bail Act. The previous coalition government created the offence of breaching bail. Prior to those changes by the coalition government in the last term of Parliament, it actually was not an offence to breach bail. If a person breached their bail, they could be brought back before the court in respect of the breach of their bail and be directed to correct the breach or be remanded as a consequence of the breach, but they actually had not committed an offence of breaching bail. That offence was introduced by the coalition government, and bizarrely this government then subsequently watered it down. It repealed the provision that made it an offence for a young person, a juvenile, to breach bail.

What are we seeing in the community? We are seeing time and time again these violent offences being committed by youth offenders, people who, thanks to the changes implemented by the Andrews government, are no longer subject to the breach of bail offence, which simply laughs in the face of the community's concern. At a time when the concern is about violent offences, typically committed by youth offenders, the fact that this government would water down bail with respect to youth offenders, to make it so it is no longer an offence for them to breach bail, is absolutely bizarre, and it is something that the coalition government would reinstate as a priority.

The other element of our commitment to bail is to end the revolving door of bail breaches. Under coalition policy, if an offender or alleged offender is on bail and breaches bail, they will not get bail again. If you breach bail, under coalition policy you will be remanded and you will not have the opportunity to get bail again. If you have got a history of breaching bail, you will not be granted bail in the future. That is consistent with community expectations. The community is sick of the revolving door of the bail system. It is sick of seeing the serious violent offences that are occurring week in, week out across Melbourne and the stories of the perpetrators being on bail, having been released on bail in respect of earlier offences. We will put an end to that. Where there are breaches of bail, that is it; there will be no more opportunities for a person to be granted bail.

We believe the amendments in this bill are on the whole a step in the right direction. They have taken too long to get here, and we propose an amendment that their implementation be brought forward. We also do not believe they go far enough. The government has taken too long since the Bourke Street murders to bring forward these changes. They need to occur earlier than the government proposes. There needs to be more wholesale change to the Bail Act, which a coalition government would implement. We believe that these changes do move in the right direction, even if they do not go far enough. I look forward to the minister in the committee stage being able to address some of the clarifications that are required for this bill and for its passage through the house today.

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