Why Jacinta Allan is pushing for laws that will lock up more kids

At the end of a week when Jacinta Allan made one of her most consequential decisions since becoming Victorian premier, she confesses to being momentarily confused about what day it is.

We’ve all been there, especially in weeks starting with a public holiday.

For Allan, Police Minister Anthony Carbines, Attorney-General Sonya Kilkenny, Department of Justice Secretary Kate Houghton and a dozen or so ministerial and departmental advisers, it was a long weekend of a very different kind.

All day Saturday, Sunday, Labour Day Monday and right up until midday on Tuesday when cabinet was due to meet to consider proposed changes to Victoria’s bail laws, this working group was sweating over the final shape and details of the reforms.

Urgency and clarity: Jacinta Allan explains the imperative for her proposed changes to bail laws.Credit: Luis Enrique Ascui

The intense, closed-door deliberations reflect two things. The most obvious is the political imperative for Allan and her government to send the right public message after being bludgeoned for months over surging crime rates in Melbourne suburbs and regional centres. The more far-reaching is the long-term impact of getting it wrong.

A Labor government, led by a woman of the Left, in what former premier Daniel Andrews often claimed to be Australia’s most progressive state, is legislating with the explicit intention of putting more kids behind bars.

In an interview with this masthead, Allan describes it as a necessary intervention. “It was done with a sense of urgency, but it was also done with a sense of clarity,” she says.

Allan promised a jolt to the bail system, and for people and organisations who have spent years advocating for better outcomes from the way police, courts and corrections intersect with young offenders, the sense of whiplash is palpable.

A current Senate inquiry into youth justice cites Victoria as an exemplar jurisdiction because it incarcerates children at a lower rate than any other state in Australia. The inquiry heard evidence that on any given night, there were on average 88 children in detention in Victoria, compared to 240 in NSW and 317 in Queensland.

In Victoria, about half the young people in detention are serving sentences and half are on remand.

Allan accepts that, as a direct consequence of her government’s proposed changes to bail laws she will this week introduce to parliament, Victoria’s numbers will rise. “It is my expectation that there will be more people on remand,” she says. “That is because we have to intervene. Repeat bail is not creating the change we need to see.”

This will be welcome news for Victoria Police, victims of crime campaigners, the Herald Sun newspaper, FM radio station The Fox and social media influencer Bec Judd, who have pushed for months for a tougher government response to youth crime. Submissions to the Senate inquiry underscore why legal and human rights groups, Aboriginal and women’s rights groups and juvenile justice experts are dismayed.

The Australian Medical Association told the inquiry there was clear evidence that “jailing harms children mentally and impairs their physical development” and that governments should be focused on preventing child offenders, most of whom have experienced violence, disability, homelessness and substance abuse, from coming into contact with the justice system.

The Royal Australian College of General Practitioners, while accepting that locking up children who commit serious crimes is sometimes necessary to support community safety, submitted that youth justice programs focused on rehabilitation, rather than incarceration were, the more effective at stopping young people from offending again.

“Approaches that are purely punitive result in increased contact with the justice system over the long term and fail to protect the health and wellbeing of the young person ... are also likely to fail to meet the needs of the broader community,” it noted.

The Australian Human Rights Commission submission could have been written with the Victorian government’s Tough Bail Bill in mind. “Despite evidence of the social determinants that are the root causes of offending behaviour, policy responses to these children are often only tinkering with the symptoms, with tougher policing, stricter bail laws, and more incarceration. This is done under the guise of keeping the community safe but are often counterproductive ... The solutions lie in transformational thinking and action to address systemic disadvantage.”

The Allan government’s proposed changes prompted Victoria’s Principal Commissioner for Children and Young People, Liana Buchanan, and Commissioner for Aboriginal Children and Young People Meena Singh to take the unusual step of issuing a joint statement.

Victorian Children’s Commissioner Liana Buchanan.Credit: Justin McManus

“We understand that Victorians want to feel safe and that particular cases profiled in the media have impacted that sense of safety,” they said. “However, we are concerned the bail reforms proposed by the Victorian government will radically increase the number of children remanded in custody and will not make the community safer.

“Instead of sweeping laws to toughen bail tests, we want to see investment in assessments, interventions and supports that will tackle the drivers of each child’s offending and effectively support rehabilitation.”

Why is Allan staking her leadership on a policy prescription that, on the evidence before the Senate inquiry and in the view of the Victorian Aboriginal Service, the Australian Lawyers Alliance and Liberty Victoria, will harm more children and not make us safer? The premier invites us to consider more closely the problem her government is trying to fix and the people she says the proposed laws will target.

Victoria’s rising crime rate and in particular a sharp spike in property crime is being driven by a group of predominantly young, highly recidivist offenders. They are known to police and mostly on a first-name basis with court officers. Armed with machetes or knives, they break into people’s homes and steal their car keys. They break in, steal, get arrested, get bail, break in and steal again.

Allan puts the total number of target offenders at about 300. She says their crimes are having a profound impact on their victims, and she is personally shocked by the apparent consequence-free thinking that fuels their repeat offending.

Premier Jacinta Allan says she is shocked at the consequence-free thinking of recidivist home invaders and car thieves.Credit: Luis Enrique Ascui

“Those crimes are going into the heart of the suburbs, into the heart of streets and the heart of homes,” she says. “If you look at where these offences are taking place it is widespread. There is a core group, but it is clear, there is a pattern of behaviour emerging statewide.

“We don’t want these young kids going on a lifetime of crime because they have committed a crime as a young person. You would hope that all young people have an opportunity to go to school and have a stable life and go on to engage in community in a productive way. Of course that is our preference. That is a good, functioning society. But we have, at the moment, an issue for some where they are engaging in this really high-risk behaviour for them and their victims, and there needs to be a circuit breaker.”

There are circuit breakers already in the system not being used. One is the option open to police, when they have evidence that a young offender has breached bail conditions, to return to court and apply to have bail revoked. Police command privately admits not enough of their officers are willing to do the paperwork required. Another is the use of ankle bracelets to monitor young offenders in the country. Victoria announced a pilot program last year but is yet to fit a bracelet on any young offender.

The bracelets have hit a bureaucratic tangle, and Allan won’t brook any criticism of police. “Police are working flat out,” she says. “What we needed was to have the laws strengthened and toughened in areas to support the work they are focused on.” Which brings us back to bail laws.

To compel magistrates and judges to give greater consideration to remanding more young offenders rather than bailing them, the government will introduce two small but significant changes to the Bail Act. The first removes a clause that requires remand to be a last resort when dealing with children charged with a crime. This is a principle of the United Nations Conventions of the Rights of the Child, which Australia has ratified, and was added to the Bail Act two years ago.

The remaining section of the act dealing with children will still require courts to “impose on the child the minimum intervention required in the circumstances” and consider a range of other factors, including the child’s age and maturity, their home life and the risk that incarceration will make it more likely they become adult criminals.

When weighing these matters, judges and magistrates can also consider changes to the state’s youth justice system introduced last year which give young people on remand access to rehabilitative programs previously only offered to those serving custodial sentences. Access to these programs are one of the reasons that Allan argues that remand, rather than repeated bailing, offers a meaningful intervention.

The second change is more sweeping. It elevates community safety to “the overarching principle for bail decision-making for offenders of all ages”. The Bail Act currently lists community safety as one of four guiding principles, along with the presumption of innocence and right to liberty, fairness, transparency and consistency in bail decisions and promoting public understanding of how the bail system works.

The full implications of prioritising community safety above all other considerations are not immediately apparent. However, it is clear they go beyond how the courts deal with recidivist home invaders and car thieves. This is why legal experts are so concerned by what the government is doing.

Victoria’s Bail Act has been subjected to five substantial reforms since the Andrews government was first elected in 2014. On two previous occasions, well-intentioned changes have resulted in unintended consequences and government apologies.

The first was offered in 2023, after Victorian coroner Simon McGregor handed down scathing findings into the death in custody of Veronica Nelson, an Aboriginal woman who died while on remand for a series of minor offences. The second apology was offered this week by Allan, when she conceded the government’s loosening of bail laws in response to Nelson’s death got the balance wrong.

Tributes to Veronica Nelson were left inside the Coroner’s Court during the inquest into her death while on remand.Credit: Eddie Jim

Previous changes to bail laws followed extensive public consultation and a 2017 inquiry by former Supreme Court judge Paul Coghlan. The latest proposed changes were developed in the space of a few weeks, with no formal consultation process or release of draft legislation.

Elena Pappas, a former public defender with the Victorian Aboriginal Legal Service and co-founder of the Law and Advocacy Centre for Women, says it is difficult to analyse legislation no one outside of government has seen, but alarm signs are flashing.

“It really seems to be driven by the need to get something out in the media rather than the need to fix the problem by engaging with experts who have been working with these laws for a number of years,” she says. “We have seen the different iterations. We have seen the wide-ranging impact that they can have. That is what makes us so concerned about the haste with which this has been done and the complete lack of consultation.”

Allan agrees that ensuring the laws target the intended people is an “absolutely a legitimate concern” but says her government did consult by seeking advice from the Department of Justice and listening to the courts, others working in the justice system and victims of crime. “Ultimately, we have got to make a decision,” she says.

It is likely that, in the short term, the proposed laws will have the desired effect of locking up kids who keep breaking into homes and stealing cars. Changing the Bail Act in such fundamental ways also runs the risk of putting in jail people who shouldn’t be there. Commissioners Buchanan and Singh say this will include children. Pappas says women will also bear the brunt of any tightened laws.

“Unintended as they may be, these consequences are easily
foreseeable, and in many cases, right in front of our eyes,” Pappas says. “We have been here before.”

Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.