December 22, 2015  |  second reading speech

Bail Amendment Bill 2015

Mr CARROLL (Niddrie) — It is my pleasure to rise and speak on the Andrews government’s Bail Amendment Bill 2015, and I welcome the member for Hawthorn’s contribution. It is with fairly short notice that the amendments have been put to the government. The Attorney‑General is at the table and will be considering them, but at the outset I just want to state a fact. This morning we heard from Amnesty International and Oxfam Australia. Acting Speaker, you were there as well. The member for Hawthorn was also at this briefing on Change the Record — Blueprint for Change by the Change the Record Coalition. The document is subtitled, ‘Changing the record on the disproportionate
imprisonment rates, and rates of violence experienced by Aboriginal and Torres Strait Islander people’.

Uniquely, in one of the presentations this morning the Andrews government was congratulated on the legislation that we are debating right here and now, and that was the reforms to bail. The Victorian Law Reform Commission report, which was begun in 2004,
is an incredibly detailed report. The Andrews government, led by the Attorney‑General,
is now implementing the reforms. This legislation will ensure a simpler, clearer and fairer bail system. It goes to the heart of procedural, legislative and judicial fairness.

Importantly though the member for Hawthorn touched on children. Let us be very clear. Right throughout our criminal justice system children are treated differently. As the law reform commission report highlighted, they should be treated differently also when it
comes to bail. We have seen an incredibly disproportionate increase in children
coming before the criminal justice system with many of the bail reforms that have been enacted previously. The Andrews government wants to address these concerns, particularly about the number of children arrested and held on remand for breach of bail conditions. If you go to the statistics, particularly since 2012, you see that for children aged between 10 and 14 years remand admissions have tripled and the number of children arrested and charged with Bail Act 1977 offences has also increased significantly.

Today we heard about some of the data that is currently before us when it comes to children. Data from Youth Justice, part of the Department of Health and Human Services, paints a stark picture when comparing the last quarter of 2013 with 2014. There has been a
200 per cent increase in the number of 10 to 14‑year‑olds remanded in custody, and Indigenous children made up 24 per cent of those 10 to 14‑year‑olds on remand in 2014. There has been a 45 per cent increase in total after‑hours admissions and a 150 per cent increase in children and young people being remanded after hours and for one or two days.

We believe that the amendments contained in this bill, which we are passing through the Legislative Assembly and following that the upper house, will bring the bail system into
line with the special rules that apply to children elsewhere in the criminal justice process. We will create new child‑specific factors that address the particular needs of children and that will need to be considered in bail decisions.

Consideration of child‑specific factors was a key recommendation of the 2007 Victorian Law Reform Commission’s Review of the Bail Act report. I have a copy of that report. It is incredibly thick and incredibly detailed. Before my contribution today I was having a look at chapter 9, which notes:

Data from 2003–4 showed that Indigenous children were almost twice as likely as non‑Indigenous children to be proceeded against by arrest rather than summons.

You cannot compare someone between the ages of 10 and 18 with an adult over the age of 18. As reflected in reforms that previous Labor administrations have made, Labor is about ensuring that children get the best start in life. When they come before the criminal
justice system, children need to be given every opportunity to receive the attention they need.

A lot of people get confused when it comes to bail. They think it is about courts and legal processes. However, often bail is really about laypeople. For a significant proportion of
people facing a bail hearing, Victoria Police officers are generally the ones who will decide whether or not bail is granted. It is not a court process. As is highlighted often throughout the 2007 Victorian Law Reform Commission report, we need to make sure our Bail Act is simple and clear, and this legislation will do it. Above all else, what comes out time and time again throughout the report is that information relating to bail should be in plain
English. At the moment when people read the Bail Act 1977 they get quite confused and think it is another legal instrument which is part of the justice system.

The reforms we are making today are also targeting terrorism and making sure that the presumptions around terrorism are of a high standard.

I want to congratulate the Attorney‑General because these reforms have been called for time and time again, whether by the Children’s Court or by the commissioner for children and young people. Many of the submissions to the review of the Bail Act largely
supported the inclusion of child‑specific factors in the Bail Act. I want to
highlight what a senior Children’s Court magistrate said, which is quoted on
page 155 of the report:

Because the sentencing objectives and sentencing provision for adults and children are so different, there is an underlying tension involved in having essentially the same bail provisions applying to each … Assuming that a single Bail Act, in whatever
form emerges from these consultations, is likely to apply both to children and
adults, I would strongly support the inclusion of child‑specific factors. It
would be logical that section 139 of the CYPA … which sets out matters to be taken into account in sentencing a child, should also be relevant to the determination of whether or not a child should be granted bail.

The report goes on to state:

All participants at our children and young people round table supported the inclusion of child‑specific considerations in the Bail Act.

Some of the amendments and language that the member for Hawthorn put on the table today go very much against the grain of the Victorian Law Reform Commission’s report and also what senior magistrates and the Children’s Court are keen to see happen, which is
removing children from the offence of breaking a condition of bail and addressing the consequences of amendments made to the Bail Act by the Napthine government, which have unambiguously resulted in the tripling of the number of children being held in remand. Importantly the amendments that have been put forward by the Andrews Labor government will put the focus where it should be: not on children but on those charged with the most serious criminal offences and who pose the most risk to our community.

In Victoria we have the presumption that the accused is entitled to bail, provided that they do not pose an unacceptable risk. This presumption is displaced in certain circumstances, and the accused then has to convince the court why bail should be granted. The overarching rule remains that bail should be denied when there is an unacceptable risk that the accused would fail to appear, commit an offence on bail, endanger the safety or welfare of the public or otherwise obstruct the course of justice.

I was in Parramatta shortly before the civilian police employee was killed. I was having a look at the New South Wales justice system. Walking around the streets of Parramatta, you could be in any part of Melbourne. It is very much a growing outer suburban area. To
see what occurred there only a week later with the civilian police employee was
a shock to the system and a shock to the core for people right across Australia.

In many respects the nation has come together to ensure that we are vigilant against terrorist attacks but also that we support one another. When it comes to terrorism, it is clear that under these new laws bail will be refused, unless there are exceptional
circumstances, in situations such as the accused being charged with intentionally
providing documents or information to facilitate a terrorist attack or
obstructing or hindering the exercise of special police powers to combat
terrorism. These changes will reverse the presumption that is in favour of bail
and align the test with that for people charged with commonwealth terrorism
offences. Many of the amendments that the member for Hawthorn introduced can be
found in commonwealth legislation.

This reform of the Bail Act is long overdue. I want to congratulate the Victorian Law Reform Commission on its report. It is incredibly substantive. I want to congratulate the
parliamentary library for the support and resources it has provided for the
debate on this important legislation. I also want to congratulate the Attorney‑General
on bringing this matter before the Parliament and putting children where they
belong: separate from adults.