Overview of changes to the Bail Act
Following the Bourke Street tragedy on 20 January 2017, the Honourable Paul Coghlan QC was asked to review the Bail Act. At the time of writing (30 June 2017), it is likely that there will be considerable changes to the Bail Act.
The Bail Amendment (Stage One) Act 2017 (Vic) (“Bail Amendment Act 2017”) will introduce the first changes; the default commencement date is 1 July 2018, but it could be proclaimed before that date. The Bail Amendment Act 2017 will:
• insert a purpose and guiding principles section (which includes maximising the safety of the community and people affected by crime to the greatest extent possible, taking into account the presumption of innocence and the right to liberty, promoting fairness, transparency and consistency in bail decision-making and promoting public understanding of bail practices and procedures);
• add to the circumstances in which the presumption in favour of bail is reversed;
• change the “show cause” test to a “show compelling reason” test;
• provide for a deferral of a bail decision if the accused is intoxicated;
• make amendments as recommended by the Royal Commission into Family Violence.
These amendments will apply regardless of when the offence to which they apply occurred.
There are likely to be significant changes to the Bail Act in the next 12 months. To keep track of these changes, visit www.parliament.vic.gov.au.
At present, the offences to which the “exceptional circumstances” and “show cause” tests (changing to a “show compelling reason” test) apply are listed in section 4 of the Bail Act. The Bail Amendment Act 2017 will insert two schedules to set out the offences that relate to each test. There will be additions to the offences under each category. For example, the “exceptional circumstances” category will include aggravated home invasion and aggravated carjacking, among others. Police and bail justices will no longer be able to grant bail to people in this bail category. For further example, the “show compelling reason” category will include the offences of kidnapping, manslaughter, child homicide, culpable driving, dangerous driving causing death or serious injury, and manslaughter, among others.
The Bail Amendment Act 2017 includes new instructions about how a bail hearing should be conducted. These instructions:
• allow a bail decision-maker to adjourn the bail application for up to four hours if the accused appears to be seriously affected by alcohol and/or drugs;
• allow a bail decision-maker to refuse bail if a person is charged with causing injury and, at the time of the bail application, it is uncertain whether the injured person will die or recover;
• impose a requirement on a bail decision-maker to enquire of the informant or prosecutor if there is a family violence intervention order or family violence safety notice against the accused.
Under another proposed change, bail conditions will continue until varied, revoked, or the matter to which the conditions were imposed has been determined. This means that the conditions will continue to operate even if an accused has failed to answer their bail and/or a warrant has been issued for their arrest.