Bail review: first advice to the Victorian government

3 Apr 2017

The provisions relating to bail in Victoria are already very strict. I do not consider that the Bail Act 1977 (the Bail Act) needs a major overhaul in terms of its theoretical underpinnings. In particular, I consider that there should continue to be a general presumption for bail, subject to the reverse onus and unacceptable risk tests.

However, the Bail Act is difficult to follow and apply. In particular, it is often difficult to work out what offences are in the reverse onus categories, and the provisions relating to grant of bail should be clarified.

I also consider that greater emphasis should be placed on assessment of risk. My proposed rewrite of section 4 places the assessment of risk upfront, retains two reverse onus categories and clarifies that both those categories involve a two step process. Additional offences would be added to the ‘exceptional circumstances’ category. The ‘show cause’ category would become the ‘show good reason’ category, with new offences added, such as rape and sexual penetration of a child. The offences to which the reverse onus provisions apply would be set out in schedules for clarity.

I also consider that more emphasis should be placed on offending whilst on bail, including making it more difficult for further bails to be granted.

In relation to who may grant bail, I recommend making it clear that police have power to grant bail in most cases. However, police and bail justices should not have power to grant bail in exceptional circumstances cases.

I note that the decisions of bail justices are largely uncontroversial. They consider bail in a very small number of cases and mostly refuse bail. I recommend that bail justices should be retained subject to further review. In the meantime, police should be able to apply to the duty magistrate for a stay of bail granted by a bail justice.

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