Criminals free to reapply for bail after failed first attempts under new plan to relax bail laws

Victorian bail laws could be significantly relaxed five years after they were toughened in the wake of the Bourke St tragedy – but those in charge say public safety won’t be put at risk.

Victorian bail laws will be significantly relaxed, making it easier for many criminals to stay out of prison.

Five years after laws were toughened in the wake of the Bourke St tragedy, the Andrews government will on Tuesday introduce proposed changes, including ending remand for offences where a jail sentence is unlikely.

The definition of “unacceptable risk” would also be changed to exclude the potential for minor crimes as a reason to refuse bail unless there was a risk to personal safety or welfare.

And offences of “breaching bail conditions” and “committing further offences while on bail” – introduced in 2013 – will be repealed.

Proposed reforms – the details of which have not been revealed – would also abolish a 2018 provision that made it harder for repeat offenders to be bailed.

Accused criminals would also be free to reapply for bail after failed first attempts without having to show new facts and circumstances – a move that could dramatically increase the volume of bail applications courts will face.

The Andrews government will introduce proposed changes on bail laws. Picture: Jason Edwards

If a bail decision maker rejected an Aboriginal person’s bail application, they would have to record how they had considered specific, self-determined Aboriginal considerations such as culture, kinship and family situations.

Accused children would have a presumption of bail, except for crimes of terrorism and homicide.

The reforms are expected to address concerns that current laws – the most onerous in the country – disproportionately affect women, Aboriginals, children and disabled people.

In response to criticism over the move, Attorney-General Jaclyn Symes said she’s confident her bail reforms will protect vulnerable people but won’t jeopardise broader community safety.

“We are fundamentally admitting that we got it wrong in the first instance,” she said.

Ms Symes said she was “really comfortable” with the new balance.

“We are not relaxing the laws for serious offenders, for people that should not be on the streets,” she said.

“What we are doing is ensuring that the strict tests, (and) the decision makers still have to have the highest regard for community safety for serious offenders. Even for low level offenders, community safety is still a consideration, but (it’s about) acknowledging that … when we’re talking about minor offences that don’t involve harm to individuals, there is just no place for these people in remand.”

Ms Symes said this new system would not allow offenders to move between magistrates if they are unhappy with their bail application.

Victorian Attorney-General Jaclyn Symes is confident her bail reforms will protect vulnerable people but won’t jeopardise broader community safety. Picture: NCA NewsWire

“You can’t go shopping. Your applications are known throughout the court system,” she said.

“One of the changes we have made is to ensure that you have the ability to have a subsequent bail application with legal representation.”

Opposition leader John Pesutto said the Coalition would review the proposed legislation.

“We all want a bail system that keeps the community safe but doesn’t see people on remand who don’t represent a risk to the community,” he said.

Victorian Greens justice spokeswoman Katherine Copsey said she held concerns the reforms don’t go far enough to protect vulnerable people.

“We all know what needs to be done, the government has known since 2019. Yet there remain vulnerable people in pre-trial detention as we speak, for no good reason,” she said.

“We’re still concerned these reforms may not go far enough, or listen to the expert advice to reduce the number of unsentenced people in Victorian prisons and stop deaths in custody.

“We look forward to seeing the government’s bill, and working with them constructively to get these reforms right.”

The law change was sparked by the death of Aboriginal woman Veronica Nelson in custody.

Her family have been lobbying the government to make changes to the state’s bail laws within three months and for reforms to be referred to as ‘Poccum’s Law’, which was Ms Nelson’s nickname.

The government has committed to the laws coming into effect within six months of legislation passing parliament.

The Bourke St tragedy prompted a review of Victoria’s bail laws. Picture: Tony Gough

But the Human Rights Law Centre warned that thousands of people will continue to be “senselessly funnelled” into prisons under the changes.

Human Rights Law Centre acting manager lawyer Amala Ramarathinam said the government must act on Ms Nelson’s calls for change.

“If the Andrews government is serious about addressing its botched bail laws and meeting its obligations under the Victorian Charter of Human Rights, it must implement Poccum’s Law,” she said.

“This includes scrapping the reverse onus provisions, creating a presumption in favour of bail, explicitly requiring that a person must not be locked up if they’re unlikely to receive a sentence of imprisonment, and removing the offence of failing to answer bail.”

Shadow Attorney-General Michael O’Brien said the opposition stood ready to work constructively with the government to craft “sensible” bail reform.

But Mr O’Brien said he hadn’t yet seen the details of the long-awaited Bill.

“I was trained as a lawyer to look at all the facts before you come to Judgement so will wait until the Bill is introduced,” he said.

“We’ll have a good look at it and we’ll consult with stakeholders.

“We welcome sensible bail reforms.

“We don’t want things to go too far the other way. We have to keep Victorians safe … but also keep people out of jail who don’t deserve to be in jail.”

Mr O’Brien said the Coalition would take a close look at the government’s pledge to wind back the offence of committing an indictable offence while on bail.

“We have to understand the government’s rationale for wanting to remove that particular offence,” he said.

Daniel Andrews lays flowers at the corner of Bourke and Elizabeth streets after the car rampage in 2017. Picture: AAP

Police association secretary Wayne Gatt said he would await full details of the reform.

“Today’s announcement by the Victorian government on bail reform tries to encapsulate in a few short paragraphs what is arguably some of the most complex legislation within the criminal justice space,” he said.

“Our position remains that there is a legitimate case for reform of the Bail Act, however we maintain that reform must not come at the expense of the safety of Victorians.

“We will comment on the Bill as it’s been drafted, when we have seen it in full. A press release, in this instance, is the tip of a very large iceberg. It belies the importance and complexity of the reform.”

Victoria’s bail laws were tightened in 2018 following a review by former Director of Public Prosecutions and Supreme Court judge, Paul Coghlan, KC

The review was prompted by the Bourke St tragedy, in which six people died and dozens were injured in a car rampage by James Gargasoulas.

Gargasoulas had a criminal history and had been on bail but went largely unchecked in the days before the incident on January 20, 2017.

Last year a parliamentary inquiry called for a review of the laws, including a simplification of bail tests and addressing the presumptions against granting bail.

It also recommended that bail decision-makers be given the discretion to consider a person’s circumstances.

Originally published as Criminals free to reapply for bail after failed first attempts under new plan to relax bail laws