Bail Amendment (Stage Two) Bill 2017

This bill combined with the Bail Amendment (Stage One) Act 2017 will implement all of Mr Coghlan’s legislative recommendations from his first report as well as recommendation 33 from the second report. That is 21 recommendations in total and one in part. The remaining recommendations in the second report are longer term recommendations that Mr Coghlan envisaged would be subject to further consultation before implementation, and the government is working with stakeholders on key implementation issues.

Then there was the issue that Ms Pennicuik raised in respect to police remand and why the government has settled on 48 hours instead of the 24 hours recommended by Mr Coghlan. As part of Mr Coghlan’s recommendation in relation to setting up a seven-day bail and remand court to enable bail matters to be processed through the courts more quickly he recommended that police be able to remand accused persons overnight, which would enable them to be brought to the bail and remand court the next day.

The fact of the matter is that the government is continuing to work with stakeholders to establish a seven-day bail and remand court. The government considers it is preferable that the police remand power be made available as soon as possible rather than awaiting the establishment of the bail and remand court. The power will be exercisable for up to 48 hours rather than overnight to reflect the current availability of the courts to hear bail matters. The night court at the Melbourne Magistrates Court has been in operation since 4 February 2017. It operates between 5.00 p.m. and 9.00 p.m. every night. There is also a weekend court which operates in Melbourne on Saturday.

Earlier this year the government announced a $5.5 million boost in funding for the night court at the Magistrates Court. This will fund Victoria Police prosecutors and protective services officers, prisoner management and escort, police custody officers, custodial health services, Victoria Legal Aid, duty lawyers and community corrections services assessments. Once the dedicated bail and remand court is in operation it is unlikely that police will need to remand an accused for the full 48 hours due to the increased availability of the court.

Mr Rich-Phillips and Ms Pennicuik also raised the question of how a vulnerable adult is to be identified and how police will be assisted in making this decision. The bill defines a vulnerable adult as an adult who has a cognitive, physical or mental impairment that causes them to have difficulty in understanding their rights or making or communicating decisions. The police officer who is responsible for deciding whether or not to grant bail is also responsible for determining whether an accused person is a vulnerable adult. Police officers routinely deal with persons with cognitive and mental health impairments and necessarily have the training and experience to do so. Police will receive further training to assist them in making this determination. Where the accused is a person known to police, police will also be able to access the law enforcement assistance program database, which will have information on any such impediments.

The Department of Health and Human Services is also in the process of rolling out an after-hours mental health information portal which police will be able to access to determine if an accused person has a known mental condition. The bill provides that the police officer’s opinion, based on the information available at the time, is determinative of an accused person’s status as vulnerable or otherwise.

Once bail is refused and a determination is made that the accused is not a vulnerable adult, police will have the authority to hold that person in custody for up to 48 hours or until the court is available. A person refused bail by police will have their bail determined by a court as soon as practicable within days. This determination would make the decision as to whether they are vulnerable or not meaningless, and any review of that decision would have no utility for the accused person.

Mr Rich-Phillips, Ms Pennicuik and some other members of the house have also raised a concern about delay. The changes in the bill and the Bail Amendment (Stage One) Act 2017 are complex, so it is essential to allow sufficient time for all the affected agencies to implement the changes. Since the introduction of the first bill we have been working with stakeholders to commence the changes as soon as possible. The government has now indicated that a number of provisions in the Bail Amendment (Stage One) Act will commence on 21 May 2018. We have determined this date taking into account the views of relevant stakeholders. Assuming this bill passes, it is the intention of the government for this bill to commence with the remaining provisions of the Bail Amendment (Stage One) Act on 1 July 2018.

In particular it is crucial that various bail decision-makers — police, bail justices and the courts — be permitted to become familiar with the changes. It would be counterproductive to rush these changes in without allowing proper time for courts and Victoria Police to implement the changes and ensure their bail decision-makers can apply the new tests. Police officers are called upon to make bail decisions on the spot and often in difficult circumstances. They will need to be confident in applying the new act from the first day of commencement. As well as changing the bail decision-making process, the act will have an effect on Victoria Police processes for keeping accused people in custody and the requirements upon them to bring the accused to court. It is important that new processes are put in place well before the commencement.

There were also questions asked in relation to relative weight, and relative weight is meant to be given to factors listed in clauses 5 and 7. Clauses 5 and 7 rewrite the tests for bail as recommended by Mr Coghlan. Clause 5 requires a non-exhaustive list of circumstances that a bail decision-maker must take into account in making a decision where those circumstances are relevant. The bill does not specify that one factor is more important than another. The relative weight to give each factor will be a matter for the bail decision-makers in the circumstances. For example, if the accused has a significant criminal history, the consideration of the accused’s criminal history will be more significant than it would otherwise have been.

In respect to clause 7, it restates the unacceptable risk test by listing four risks which if deemed to be unacceptable risks require the refusal of bail by the decision-maker. If any one of these risks is an unacceptable risk, then bail must be refused. It is irrelevant whether any of the three other categories of risk exist. It is not necessary for the bill to give more importance to one risk over another. These provisions must also be read along with the ‘Guiding principles’ that were inserted into the Bail Act 1977 by amendments in the Bail Amendment (Stage One) Act 2017. These amendments require that the entirety of the Bail Act is to be interpreted as having regard to the guiding principles, the first of which is:

(a)    maximising the safety of the community and persons affected by crime to the greatest extent possible …

There were also some questions in relation to recommendations 15 and 16 along the lines of, ‘Why is the government implementing recommendation 15 when it supported recommendation 16, which recommended deferral of recommendation 15?’. Mr Coghlan’s recommendation 15 was that a person alleged to have offended whilst already on two undertakings of bail must be brought to court to have further bail granted. Mr Coghlan noted that a person in these circumstances is necessarily a higher risk of offending. He also noted significant community concerns about persons on multiple sets of bail. Mr Coghlan’s rationale for deferring the implementation of recommendation 15 was that it had the potential to impact on the resources of agencies involved in the bail system, including the Magistrates Court and Victoria Police. Since the initial release of the report the government has been able to assess the resourcing impacts that may be caused by the implementation of recommendation 15, and now the government is confident that recommendation 15 can be implemented without significant adverse impacts on the bail system. Accordingly, given the importance of this reform in ensuring that there are consequences for those who reoffend whilst on bail, it is proposed its implementation not be deferred.

There was also a question asked as to why we are not reinstating the offence of breach of bail for children. The Coghlan review, as I said, made 37 recommendations in total. The restoration of the offence for children breaching bail was not one of them. We are making it much harder for people alleged to have committed serious offences, regardless of age, to get bail. The presumptions against bail will apply to children. We are amending the Bail Act to provide that a person alleged to have committed serious indictable offences whilst on bail, summons or parole, under sentence or at large will not be granted bail unless they can prove there are exceptional circumstances. Our changes to the Bail Act in 2016 in relation to this offence were due to concerns that it was causing children to be needlessly held on remand for minor breaches of bail. This made no change to the ability of Victoria Police to arrest any child found to be breaching bail conditions and bring them before the courts. This has been happening, and the Children’s Court has been revoking bail where appropriate.

Ms Pennicuik has also asked: why has the government not implemented all of the Coghlan recommendations? Essentially this bill has combined the Bail Amendment (Stage One) Act provisions and will implement all of Mr Coghlan’s legislative recommendations from the first report as well as recommendation 33 in the second report, as I stated at the commencement of my contribution. The remaining recommendations in the second report are longer term recommendations that Mr Coghlan envisaged would be subject to further consultation before implementation. As I have said, the government is working very hard with key stakeholders on the implementation.

There was also a comment about clause 29 of the bill, which introduces a new presumption of cumulation provision into the Children, Youth and Families Act 2005. The Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 introduced a presumption that sentences for escape from or damage to a youth justice facility will be served cumulatively rather than concurrently. The presumption of cumulation only applied in relation to a young offender who received a period of detention imposed when that offender was a child. This bill will clarify that the presumption of cumulation applies to young offenders who receive a period of detention either as a child or as an adult.

I hope my contribution and my summing up provides some assistance to members and will provide assistance in terms of the deliberations of the committee of the whole.

Motion agreed to.

Read second time.

The ACTING PRESIDENT (Ms Dunn) — I have considered the amendments circulated by Mr Rich-Phillips, and in my view amendments 2 and 3 are not within the scope of the bill; therefore an instruction motion pursuant to standing order 15.07 is required. I remind the house that an instruction to committee is a procedural debate.