A Victorian parliamentary inquiry has called for an overhaul of the state’s bail laws following its review of the state’s criminal legal system. The Legal and Social Issues Committee found that Victoria’s criminal legal system does not appropriately or fairly balance the maintenance of community safety with the presumption of innocence for people accused of an offence.

The Committee made 100 recommendations for change, including that the Andrews government review the operation of the state’s bail laws. This recommendation does not go far enough – there is an urgent need for reform that should not be delayed by any further review of the bail laws.

For years, Aboriginal and Torres Strait Islander, human rights, legal and advocacy groups have been calling on the Andrews government to fix the state’s bail laws, which are some of the most dangerous and discriminatory in the country. In February 2022, a staggering 57 percent of women in Victorian prisons were unsentenced.

The Victorian Aboriginal Legal Service, Human Rights Law Centre, Fitzroy Legal Service and FlatOut are calling on the Andrews government not to kick this issue down the road any further, and to urgently fix Victoria’s bail laws by:

  1. Repealing the reverse-onus provisions in the bail laws;
  2. Creating a presumption in favour of bail for all offences, with the onus on the prosecution to demonstrate that bail should not be granted due to there being a specific and immediate risk to the physical safety of another person or the person posing a demonstrable flight risk;
  3. Inserting an explicit requirement in the bail laws that a person must not be remanded for an offence that is unlikely to result in a sentence of imprisonment; and
  4. Repealing the offences of committing an indictable offence while on bail, breaching bail conditions and failure to answer bail.

The Committee found that the current bail laws are impacting “women, particularly Aboriginal women and women experiencing poverty, the most”. This is resulting in the injustice of more women being denied bail, not because they pose a risk to the community, but because they themselves are at risk – of family violence, homelessness, economic disadvantage and mental illness.

This is because of knee-jerk amendments to the state’s bail laws following the tragic Bourke Street incident, which have increasingly put the burden on people charged with an offence to show why they should be released on bail. Before, the toughest legal test applied only to the most serious charges, such as murder. Now, allegations of low-level wrongdoing can be held to the same standard as the most violent and dangerous crimes.

Nerita Waight, Chief Executive Officer at the Victorian Aboriginal Legal Service, said:

“The Government and Opposition have shown that they are too timid to address urgently needed reforms of the justice system by watering down the recommendations of an expansive inquiry into Victoria’s criminal justice system. Such a narrow and timid vision in an election year will mean that thousands of Victorians will continue to have their lives, families, and communities destroyed by a broken justice system. The Andrews government needs to urgently reform its broken bail laws, stop pouring money into policing and prisons, and invest in our communities. Aboriginal and Torres Strait Islander people are disproportionately affected by the injustices in the legal system. That’s why the government needs to support self-determination by properly funding Aboriginal Community Controlled Organisations such as VALS.”

Monique Hurley, Senior Lawyer at the Human Rights Law Centre, said:

“Victoria has some of Australia’s most dangerous and discriminatory bail laws that are needlessly removing women from their families and funnelling them into prisons to be warehoused on remand. Victoria’s bail laws are resulting in the injustice of women being denied the presumption of innocence, not because they pose a risk to the community, but because the government has failed to resource services and support for women at risk of homelessness, poverty and family violence. This report is a long overdue wake up call and an opportunity for the Andrews government to make the right decision and fix Victoria’s bail laws.”

Megan Pearce, Managing Lawyer – Social Action and Public Interest Law at Fitzroy Legal Service, said:

“This Inquiry has shown again what we have known for years – Victoria’s bail laws are failing Victorians, particularly Aboriginal people and women. Our clients routinely go to prison for low-level, non-violent offences connected to the criminalisation of drug dependence, homelessness, poverty and failures in the family violence system. The bail laws aren’t fair. They aren’t making us safer. And they need to change, now.”

Karen Fletcher, Executive Officer, FlatOut, said:

“If the Victorian public knew how dysfunctional the current bail laws are, and how harmful to the Victorian community, there would be an uproar. Victorian bail laws are a pipeline from dispossession and trauma into prisons, where that trauma is magnified, worsened, and transmitted to new generations. This must stop. Victoria needs homes, not prisons, for victim/survivors so they can build safe lives for themselves and their children. Victoria’s bail laws must be fixed as an urgent priority.”

The Victorian Aboriginal Legal Service has started a petition calling on the Andrews government to urgently fix the state’s bail laws, which is available here.

The Victorian Aboriginal Legal Service’s submission to the Inquiry is available here, the Human Rights Law Centre’s submission is available here, the Fitzroy Legal Service’s submission is available here, and FlatOut’s submission is available here.

To determine eligibility VALS will:

  • enquire as to the Aboriginality of the client;
  • enquire as to perceived or actual conflict of interest;
  • enquire as to compliance with the Means Test;
  • consider the merit of the client’s matter.

The first time someone uses VALS they must provide proof of their Aboriginality using the Confirmation of Aboriginality Form. This form must be signed and sealed by the Officer Bearers of a recognised Aboriginal and Torres Strait Islander organisation.

VALS must not decline to provide assistance to an eligible person, group or body on the grounds that the other party to the matter is an Aboriginal and/or Torres Strait Islander person. In circumstances where the relationship between the parties to a case would result in a conflict of interest, that conflict must be managed in accordance with the Victorian Legal Practice requirements and Policy Direction 9 – “Managing Conflicts of Interest” – of the Attorney-General’s Department Policy Directions for the Delivery of Legal Aid Services to Indigenous Australians (2008).

VALS will not act if a conflict of interest exists. A conflict of interest may be an ‘actual’ conflict of interest or a ‘perceived’ conflict of interest. A conflict of interest can involve:

  • Clients who have different interests, such as VALS may have advised or acted for person “A” (old client) who has an interest that conflicts with person “B” (intended new client).
  • Clients and VALS, such as a VALS staff member or Board Member has an interest that conflicts with an intended new client. Conflicts involving client-provider relationships are:
    •  An owner, director, manager, employee, contractor or agent of VALS and/or;
    • An employee of the Department; and/or
    • A close relative (spouse, de facto, parent, sibling or child) of any of the above.

VALS provides assistance on a first in best dressed basis (i.e. provide direct assistance to the party who approaches VALS first). VALS will refer the other party to another legal service provider or “brief out” the client to a private lawyer (subject to the client meeting the requirements for brief outs). Where appropriate, VALS may act for one client and provide assistance by brief out to the other.

Means Test
Where a person seeks casework assistance, VALS must ensure that applicants satisfy the Means Testing provisions of the Policy Directions.

VALS must ensure that all applicants for legal casework assistance satisfy one or more of the following requirements:

  • Under 18 years of age;
  • Main source of income comes from Community Development Employment Projects; (CDEP) participant wages or Centrelink (or equivalent) benefits; or
  • Gross household income is under $52,000 per annum.

Note: Household income includes the income of your partner, spouse, relative including an adult child who you live with.

The Means Test will be administered in two parts:

Part A: Requires the completion of a small number of questions relating to the applicant’s personal circumstances and income level.

Part B: Is required where applicants do not satisfy the criteria in Part A. It requires more detail about the applicant’s income, assets, employment status and number of dependents.

Merit Test
Discretion will be used to determine if a particular case has merit.