Changes to Victoria’s Bail Act 1977

Victoria’s bail laws are, without a doubt, the toughest in Australia. No one is more aware of that than our experienced bail application specialists. It has become increasingly difficult for us to get our clients bail, so we welcome the recent changes to the Bail Act 1977 (Vic), which took effect on 25 March 2024.

See here for more on ‘What is Bail?‘ and making a ‘Bail Application‘.

What does the Bail Amendment Act 2023 do?

The recent Bail Amendment Act 2023 (the Act), commenced on 25 March 2024, made further changes to the Bail Act 1977, seeking to ensure bail laws protect the whole community and better target the use of remand for cases where it is necessary to prevent an unacceptable risk to community safety.

The Act amended the Bail Act 1977 with consequential amendments to several other Acts to:

  • Make changes to the bail tests applied and the factors that bail decision-makers must take into account when making determinations about bail;
  • Repeal 2 offences; and
  • Address remand of those accused of relatively low-level offending and the particular impacts that the Bail Act 1977 has on vulnerable cohorts, including Aboriginal people and women (see the Explanatory Memorandum).
Victorian bail law reform

Background to bail amendments

In 2017, when James Gargasoulas murdered six people and injured many others using his motor vehicle, he was on bail. Consequently, the Victorian Government changed the law to make it more difficult for repeat offenders to get bail, leading to a significant spike in the number of prisoners being held on remand.

Initially thought to be an effective measure in protecting the wider community, the amendments targeted many of our community’s most vulnerable members, resulting in them being remanded for matters that would not ordinarily attract a term of imprisonment. 

In his second reading speech, Mr Anthony Carbines stated:

“We know that the changes we made have had a disproportionate impact on people who were already experiencing significant disadvantage, with a particular impact on Aboriginal people, people with disabilities, children and women. Ultimately, the net was cast too wide.”

The case of Ms Veronica Nelson

The recent amendments to the Bail Act 1977 were sparked by findings into the death of Veronica Nelson delivered at the Coroners Court on Monday, 30 January 2023. Ms Veronica Nelson was a 37-year-old Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman.

Ms Nelson was due to appear at the Melbourne Magistrates Court after her arrest in December 2019. The Court, however, did not get to her case on 30 December and was subsequently stood over until 31 December 2019, when Ms Nelson made her own unrepresented application for bail, on the advice of a lawyer, to preserve her right to a legally represented bail application later. Bail was refused. Ms Nelson was required to show exceptional circumstances to justify a bail application because she was charged with breaching bail. She had also failed to appear in court for shoplifting offences and was accused of having committed a further similar offence.

Ms Nelson died alone in custody on 2 January 2020 from a rare gastrointestinal condition, suffering from opiate withdrawal and malnutrition while she was remanded in custody for a crime for which she would never have received a term of imprisonment. Ms Nelson’s death was found to be preventable.

As stated by Mr Carbines in his second speech: “The coronial inquest into Veronica’s death found that the bail system has a discriminatory impact on Aboriginal people resulting in grossly disproportionate rates of remand, with the most significant impact being on Aboriginal women.”

Summary of bail amendments

Repeal of Bail Act offences

The Bail Amendment Act 2023 repealed two offences under the Bail Act 1977:

The offence of failure to appear on bail is retained.

Bail reforms for children

The amendments provide that the reverse onus test applies to children differently than adults, applying in fewer circumstances for children. There are exceptions to this for murder and other homicide offences. As with adults, the reverse onus bail test also applies to children accused of terrorism offences who pose a terrorism risk or who have a terrorism record.

Section 3B(1) of the Bail Act 1977 has been expanded and includes the following factors, which a bail decision maker must take into account:

  • The child’s age, maturity and stage of development at the time of the alleged offence (a).
  • The need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being a last resort (b).
  • The presumption at common law that a child who is 10 years of age or over but under 14 years of age cannot commit an offence (doli incapax) (c).
  • The need to preserve and strengthen the child’s relationships with parents, guardians or carers and other significant persons in the child’s life (d).
  • The importance of supporting the child to live at home or in safe, stable and secure living arrangements in the community (e).
  • The importance of supporting the child’s engagement in education, training, or work and being subject to minimal interruption or disturbance (f).
  • The need to minimise the stigma to the child resulting from being remanded (g).
  • The fact that time in custody poses criminogenic and other risks for children, including a risk
    that the child will become further involved in the criminal justice system and a risk of harm (h).
  • The need to ensure that the conditions of bail are no more onerous than necessary and do not constitute unfair management of the child (i).
  • The fact that some cohorts of children experience discrimination resulting in over-representation in the criminal justice system, including Aboriginal children, children involved in the child protection system, and children from culturally and linguistically diverse backgrounds (j).
  • Whether, if the child were found guilty, the time spent remanded in custody would likely exceed a term of imprisonment (k).
  • Any issues that may be relevant to a child’s individual circumstances, such as mental illness, disability, abuse, trauma or family violence (l).
  • Any other relevant factor or characteristic (m).

Considerations for Aboriginal people

Following consultation with Aboriginal communities, s3A of the Act now gives greater guidance to the bail decision maker when making decisions regarding an Aboriginal person or child by setting out factors that make an Aboriginal person particularly vulnerable in the criminal justice system.

The amendments recognise the unacceptable overrepresentation of Aboriginal and Torres Strait Islander peoples in custody and seek to ensure that the rates of incarceration for Aboriginal people are not further compounded unless there is good cause to do so (HA (a pseudonym) [2021] VSCA 64).

Section 3A(1) requires consideration of:

  • Historical and discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population (a).
  • The risk of harm and trauma that being in custody poses to Aboriginal people (b), who are particularly vulnerable in custody.
  • The importance of maintaining and supporting the development of the person’s connection to culture, kinship, family, Elders, country and community (c).
  • Issues that arise in relation to the person’s history, culture, or circumstances, such as the impact of trauma, any experience of out-of-home care, any experience of social or economic disadvantage, any experience of ill health or mental illness, any disability a person may have, or any caring responsibilities a person may have (d).
  • Any other relevant cultural issue or obligation (e).

 S3A also requires a bail decision maker to identify and record the relevant matters they took into account when refusing bail to an Aboriginal adult or child to ensure they engage meaningfully with the considerations.

Restricted remand for summary offending

The amendments prohibit remand for a person accused only of offences under the Summary Offences Act 1996, subject to exceptions. The prohibition on remand does not apply if the person has a terrorism record or is accused of a serious, violent or sexual offence listed in Schedule 3 (s4AAA).

The “double uplift” provision, which made it more difficult for people who committed an offence while on bail to be granted bail for a new offence, has been abolished.

The reforms mean that people will not be remanded in custody for offences unlikely to result in a prison sentence. Remand is, however, still available for serious summary offences of violent and sexual nature.

For minor offences, accused persons may be placed on bail subject to conditions and face bail being revoked if conditions are not complied with.

Considering the likelihood of imprisonment

Section 3AAA(1) now requires bail decision makers to consider whether the accused is likely to be sentenced to a term of imprisonment when applying the reverse onus test or unacceptable risk test.

Making a second bail application

The new provisions allow a legally represented person to make a second bail application without the need to establish new facts and circumstances (s18AA).

Other changes to bail

The amendments rectified anomalies in the application of bail tests by:

  • Ensuring those charged with historical offences are subject to the same tough bail tests as those charged with contemporary offences.
  • Ensuring consistent bail tests apply to accused people who re-offend while subject to certain orders.
  • Extending the court’s power to allow an accused to go at large.
  • Clarifying that an adjourned undertaking is not serving a sentence to ensure that the reverse onus test is applied consistently and as intended.

The amendments also:

  • Adopt a gender-neutral tests;
  • Update the definition of Aboriginal person;
  • Replace outdated terminology such as ‘surety’ with plain language; and
  • Make it clear that the rules of evidence don’t apply in bail applications.