Martha HAYLETT (Ripon) (11:30):

I rise to speak on the Bail Amendment Bill 2023 today. Before I begin my contribution, I would like to acknowledge the family of Veronica Nelson, who may be watching today. I cannot possibly imagine the pain that they have been through. I express my deepest sympathies to Veronica’s family, friends and community. A death in custody is never, ever acceptable, and I am committed as a member of the Victorian government to working hard to prevent future tragedies from happening.

There are important changes in legislation being brought to this place today, but we must be honest with ourselves that this is just one step in the journey we must take to ensure that a death in custody never happens again. Over the past decade there has been a significant increase in the number of Victorians remanded in custody. They have not been convicted of a crime and in some cases stand accused of minor, non-violent offences. Holding an accused person in remand in some circumstances is an important part of our criminal justice system, and I think we could all agree on that in this place. The community rightly expects that in many cases it is entirely appropriate to not grant bail to an accused individual. That is why people accused of serious crimes are subjected to the onerous exceptional circumstances test or the show compelling reason test. These provisions are designed to keep the community safe from people who have been accused of crimes such as murder, rape, home invasion or armed robbery.

But I believe that the community also expects the incarceration of a person who has not been committed of a crime to be a last resort. We know too that existing bail laws have been a major driver to the increased numbers in remand and that this is disproportionately affecting Aboriginal people, women, children and people experiencing disadvantage. The existing laws extend the onerous test to people who have committed minor, non-violent offences whilst on bail for other minor, non-violent offences. This gives the same treatment to a person accused of theft, who may pose very little danger to the community, as to a person who has committed the most heinous of crimes. This is simply not fair. It is not a good use of resources, and it has caused our remand prisons to fill with people accused of non-violent offences. This does not sit well with this side of the chamber. We have seen that these terrible circumstances have arisen from current laws, and that is exactly why we are changing them today.

This bill will deliver a package of reforms to the Bail Act 1977 to achieve a more balanced approach. It will target the Bail Act tests at those charged with serious offending by refining the unacceptable risk test, limiting the reverse onus bail test to only those charged with serious offences and introducing a new child bail model which will give effect to the principle of custody as a last resort. It will also repeal two Bail Act offences: committing indictable offences whilst on bail and contravening conduct conditions on bail. It will update the considerations that bail decision makers must take into account by expanding Aboriginal and child considerations and considering likelihood of imprisonment and, if so, how the likely length of the custodial sentence would compare to the likely time on remand. Importantly the bill will also refine the requirements for subsequent bail applications at court, and it will prohibit remand particularly for minor offences, with exceptions.

The bill will also require bail decision makers to specifically consider whether the accused is likely to be sentenced to a term of imprisonment if found guilty and, if so, whether they are likely to spend more time on remand than the likely length of the custodial sentence. It will allow an accused person to make a second legally represented bail application before a court, without having to establish new facts or circumstances, as is currently required. This seeks to remove the incentive for applicants to try and secure a second application by appearing without a legal representative at their first application. And the bill will also make amendments to modernise and improve the act, including adopting gender-neutral terms, updating the definition of ‘Aboriginal person’ and making it clear that the rules of evidence do not apply in a bail application.

These are such important reforms, and we now know that the amendments to the Bail Act in 2013 and 2018 cast the net too wide. It is our job as the government of the day to make sure that the protection of the community includes all members of the community, especially those who are most vulnerable. The 2018 changes to the Bail Act were in response to the tragic events in the Melbourne CBD on 20 January 2017, when James Gargasoulas murdered six people and injured many others. He was on bail at the time, and this was not the first violent crime that had undermined public confidence in the bail system. The subsequent legislative changes after this event made Victoria’s bail laws the toughest in the country, including by making it more difficult for repeat offenders to get bail. The changes were intended to ensure that offending on bail should have consequences, but it left some of our community disproportionately exposed to criminalisation and incarceration. In this respect we did get the balance wrong, and we are the first to admit that.

The reforms that we are now introducing in this bill today seek to ensure that all members of the community are protected and that low-level offending is responded to proportionally and effectively. We know that these reforms are urgently needed. They will take effect as of 25 March 2024, next year, which balances the need for change with the time that the courts, police and legal assistance providers will need for implementation.

Despite what some in the media or those opposite may say, it is important to note that this bill does not seek to reduce the onus on rapists or murders, but rather it is for people who have been accused of crimes akin to petty theft. Community safety is so important, and it is a core concern of this government. These reforms recognise that the existing laws have failed to protect parts of our community, and we need to fix that. Remand and custody should be used to keep Victorians safe, not to further punish the most vulnerable members of our community. Where the accused poses an unacceptable risk if released on bail, it is appropriate that they be remanded. The Bail Act will continue to prioritise community safety while ensuring that people are not necessarily exposed to harmful custodial episodes.

I want to sincerely thank the legal and community advocates who have helped lead these reforms, particularly advocates in the Aboriginal community. I would also like to acknowledge the public servants, the Attorney-General herself and the fantastic team in her office who have done a big, big power of work to get this to where it is today. These are not small reforms, and they should never be diminished – that they are not enough. We know that we need to do more, and that is exactly why we are getting on with doing that.

I would also like to, again, acknowledge the tragic events that shed light on the need for reform. I want to acknowledge the hardship and trauma caused by Veronica Nelson’s death. I want to acknowledge Veronica’s amazing family, particularly her mother Aunty Donna Nelson and her partner Percy Lovett, for their strength in turning their grief into advocacy to prevent future deaths in custody, including for those on bail. The Victorian government, which I am so honoured to be a part of on this side of the chamber, fully recognises the need for action to ensure that our bail system genuinely recognises the over-representation of Aboriginal people within our justice system. There is a long road towards reforming our justice system in Victoria, but these reforms seek to take a big step in the right direction. I am proud to see these changes happening and to be a part of a government that is doing what matters. I commend the bill to the house.