Manual for Victorian courts still advises judiciary release accused youth criminals on bail, despite claimed crackdown
An official guide for judges and magistrates in making bail decisions, updated in the wake of the Allan government’s crime crackdown, still advises decision makers to “impose the minimum intervention required” on accused young offenders.
An official guide for judges and magistrates, updated in the wake of the Victorian government’s crackdown on crime, still encourages the judiciary to release accused youth criminals on bail.
The opposition said the manual makes a mockery of Jacinta Allan’s claims that the government has introduced the toughest bail laws in the country.
The ‘Bail Bench Book’, updated by the Judicial College of Victoria on October 3, instructs decision makers that they should continue to “impose the minimum intervention required” on accused young offenders.
The guide states: “A child, especially an Aboriginal child, should be released on bail, with conditions, wherever possible.
“Both before and after the amendment a decision maker was required to impose the minimum intervention required in the circumstances.”
It comes as Victoria’s spiralling crime crisis has seen offending rates reach the worst on record.
The same 1100 kids aged between 10 and 17 have been arrested at least 7000 times in the past year to June, meaning the lawless cohort are responsible for at least six crimes each on average.
In March the government passed new bail laws mandating bail-decision makers to consider community safety a top priority, while also removing the principle of remand only being used as a last resort for youths.
But the updated judicial manual – which was published in response to the changes and is used by judges and magistrates to determine how to apply Victoria’s bail laws in practice – states that courts must still apply minimal intervention when dealing with a child, and that the government’s changes do “not alter how bail decision makers are to approach the necessary intervention required to be imposed”.
“(Labor’s amendment) does not change the fact that decision makers must consider what constitutes the minimum intervention necessary,” it states.
It further explains: “ … while community safety must be maximised ‘to the greatest extent possible’, this is not an absolute maximum. It must necessarily allow room for consideration of the other fundamental principles.”
The updated manual also instructs judicial officers that granting bail may ultimately be in the best interests of the community, referencing a decision by Supreme Court Justice Michael Croucher in which he found “placing a child in custody may increase their likelihood of reoffending and so has broader implications for the community”.
“In this way, consideration of community safety has two aspects,” the manual states.
“First, in the short term, removing the child from the community removes the opportunity to reoffend, but second, in the long term, incarcerating children increases their likelihood of reoffending.
“Balancing and weighing these competing aspects of community safety depends on the circumstances and only where no less invasive intervention is available and there is an unacceptable risk is remanding a child in custody required by the BA (Bail Act).
“While refusing bail may protect the community for the period of time the accused remains in custody, that would be a very shortsighted approach to the problem because it does not offer the same long-term recovery and rehabilitation prospects of a successful stint in a residential rehabilitation facility.
“Of course there is a risk this will not succeed, or worse, but it can be a risk worth taking in the name of community safety via recovery and rehabilitation in the longer run.”
In a press release after the new laws were passed the Premier said the “new laws will jolt the system.”
“They will change what decision makers consider, ensure respect for the rules and toughen the bail tests for the worst offences,” she said.
“Starting immediately, community safety will come first on all bail decisions – becoming the overarching principle for bail decision-making.
“It will also no longer be necessary to consider remand as a last resort for a child.”
But Opposition Leader Brad Battin dubbed the reforms a “joke” saying the manual exposed loopholes that would keep violent offenders on the street.
Shadow Attorney-General Michael O’Brien warned the bail manual proved Victoria’s bail laws would continue to put Victorians at risk.
“The Premier’s spin does not match up with reality — her changes do not deliver what she claims,” he said.
“Victorian judges are still being instructed that youth offenders should get bail wherever possible.
“Judges are still being told that community safety is just one of a number of ‘competing and conflicting factors’ when deciding bail.”
A government spokesperson said changes to the Bail Act made it unequivocally clear that community safety was of overarching importance, and there was no doubt that bail decisions should remand an accused person who poses an unacceptable risk to community safety.
“We’ve made our laws and our expectations clear. Our tough bail reforms put community safety first and they are already making a difference with remand numbers of young people increasing by 46 per cent,” she said.
“The JCV’s guide book clearly states our amendment to the Bail Act to ensure community safety is prioritised in all bail decisions is significant and, as intended, makes community safety the most important factor.”
Ms Allan on Thursday maintained the new judicial guidance put community safety first.
“The guidance does identify that community safety must come first in all bail-making decisions, and we are seeing as a result of that change, a 46 per cent increase in the number of young people on remand, not out on bail,” she said.
“The guidance that has been released reinforces the fact that the change to the bail laws has been made to put community safety first.”
