Bail Amendment (Stage One) Bill 2017

The Bail Amendment (Stage One) Bill 2017 implements a number of the recommendations from the review, Bail Review: First Advice to the Victorian Government, conducted by the Honourable Paul Coghlan, QC, following the terrible events of 20 January 2017 in Bourke Street, and implements recommendation 80 of the Royal Commission into Family Violence.
Thursday, June 22, 2017 - 10:15am
Sue Pennicuik

Ms. PENNICUIK (Southern Metropolitan) — The Bail Amendment (Stage One) Bill 2017 implements a number of the recommendations from the review, Bail Review: First Advice to the Victorian Government, conducted by the Honourable Paul Coghlan, QC, following the terrible events of 20 January 2017 in Bourke Street, and implements recommendation 80 of the Royal Commission into Family Violence. Paul Coghlan's review was released in April this year. In brief, the bill inserts a purpose and guiding principles into the Bail Act 1977, which previously were not there, and, as I understand it, Victoria has the only bail act in the country that does not have a purpose and guiding principles, so that is a welcome development and was recommended by Mr Coghlan.

The bill expands the circumstances in which the presumption in favour of bail is reversed by adding more serious offences to the existing exceptional circumstances and also to what is currently known as the show-cause category. There are some good aspects and some concerning aspects to that, which I will return to later in my contribution.

Controversially the bill replaces the 'show cause' test for bail with the 'show compelling reason' test, which in effect creates a higher threshold before bail can be granted. This was not recommended by Mr Coghlan, who only recommended making the words 'show cause' clearer to bail decision-makers, to people applying for bail and to the general public. The words 'show cause' are not well understood, and he recommended that they be changed to 'show good reason'. We have grave concerns about this change because it is quite a significant change to the two types of 'show' presumptions against bail which exist already in the Bail Act, and there has not been any evidence or reason given by the government for that.

The bill also creates schedule 1 offences for the existing exceptional circumstances category and reverse onus offences and schedule 2 offences for the show cause — or now under this bill the show compelling reason — category offences. In his review Mr Coghlan said that the Bail Act as it is currently written is very confusing and the show-cause provisions are not clear to many decision-makers, whether they be in the courts or whether they be the police — and particularly the police. He made quite a number of comments about his concerns about the understanding of the show-cause provisions by police and also by bail justices. The bill clarifies the powers of police, bail justices and the courts to grant bail — and I will discuss that later in my contribution — and provides for the adjourning of hearings if the accused appears to be affected by alcohol, another drug or a combination of drugs to enable the person to in effect sober up. It also makes important amendments to the Bail Act recommended by the Royal Commission into Family Violence, specifically recommendation 80 with regard to the interaction between bail conditions and family violence safety notices.

It is worthwhile for us to thank Mr Coghlan for his review — his two reviews in fact, because they have both been released. This stage 1 bill is based on some of the recommendations contained in First Advice to the Victorian Government. One of my first criticisms with this whole process is that we are putting in place some of the recommendations of the stage 1 review but not all of them, and on my careful reading of Mr Coghlan's review it is very concerning to put in the new schedules, for example, which significantly broaden the range of offences that will mean that the accused has the presumption or the onus on them to show why they should have bail.

The number of those offences is much, much broader under this bill.

However, the bill does not put in place Mr Coghlan's other very important recommendations with regard to the rewording of section 4 of the Bail Act 1977, for example, and adding more criteria for bail decision-makers to consider when accused come before them, either to show a good reason, as I would like to have it said, or an exceptional circumstance. To my mind, putting in the broader numbers of offences under the two new schedules on the one hand makes it clearer for the bail decision-makers to know which offences actually trigger the reverse onus provisions, but it does not give the decision-makers clarity as to what they should be giving priority to in their considerations of those reverse onus provisions.

Mr Coghlan made very specific recommendations as to the wording of the criteria under section 4 of the act that should be included and clarified. Mr Somyurek, in his contribution, actually quoted that particular part of the report where Mr Coghlan says that it is very difficult for decision-makers to know what criteria they are meant to apply. Mr Somyurek implied in his contribution that that was being fixed by inserting the schedules. It is actually not. The clarifications to the language that Mr Coghlan talks about in the review, that are very much needed, are not in this bill. But I have amendments which have the effect of inserting those clarifications which Mr Coghlan did recommend be inserted into the principal act. I am happy to have those circulated.

Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan Region) pursuant to standing orders.

Ms PENNICUIK — I also point out that in addition to the clarifications recommended by Mr Coghlan to the language with regard to criteria for bail decision-makers, there is also an amendment to change the wording from 'show compelling reason' to 'show good reason' for less serious offences, or the schedule 2 amendments in the bill.

The bill inserts two schedules. Schedule 1 will apply the reverse onus in exceptional circumstances. It is for the more serious offences and there is a large number of serious offences in that schedule. The bill inserts schedule 2 offences into the act and applies to them what the bill calls 'compelling reason reverse onus', which by my amendment would read as 'show good reason', which is what was recommended by Mr Coghlan.

Mr Coghlan's review goes to some length to outline why he believes we need to retain the two types of reverse onus in the Victorian act. He goes on to compare our Bail Act with interstate acts and overseas acts, such as in the UK and New Zealand. After going through all the arguments, some put forward by Liberty Victoria, for example, the Law Institute of Victoria and others, including Victoria Police, who favour scrapping the reverse onus, which was one option, and just having the unacceptable risk test, in his review he came down on the side of retaining the unacceptable risk test — that is, the informant or prosecutor has to prove that there is an unacceptable risk. If that has not been proved, that is when the accused goes into the reverse onus step and schedule 1 or schedule 2 applies, depending on the offence with which the accused is charged. While Mr Coghlan considered all the arguments, for and against, he came down on retaining those two types.

In terms of changing the wording, retaining 'exceptional circumstances' means it is quite a high threshold. Many commentators already say it is too high. Be that as it may, it is the existing wording. Mr Coghlan did not recommend any change to the bar that has to be reached in terms of show cause. He said 'show cause' is not well understood and recommended it be changed to 'show good reason' but that the bar should remain the same. The problem with changing 'show cause' or 'show good reason' to 'show compelling reason' is that there is virtually no difference between the bars for 'exceptional circumstances' and 'compelling reasons'. While the government is saying there is a schedule 1 and a schedule 2 and different bars apply, in fact the bars that apply are quite similar. There are a lot of concerns with that. One is that a large number of the offences in schedule 2 are quite broad offences, and committing an offence in that schedule could range from really, really very serious to not that serious at all but could still mean that the person is remanded in custody when in fact they do not pose a risk to the community.

That is why I think that the extra clarifications recommended by Mr Coghlan in his review in terms of the criteria for unacceptable risk need to be clarified, along with the factors that a bail decision-maker must consider when considering whether to refuse bail. My amendments will clarify that. Whether or not you are in favour of the bill, I do not think the bill can work as intended by Mr Coghlan without those changes. He has admitted that even if the review was fully implemented the way he has intended, it would still mean a lot more people would be remanded in custody. As I say, he and many others also concede that some injustices could occur with regard to that.

Again I thank Mr Coghlan for his review. I point out, as I did at the start, that there were two reviews: his first advice and second advice to government. In the first advice he foreshadowed changes that he recommended should be made also with regard to very minor offences. This involved taking those offences out of the bail system completely to counteract the more strict conditions that this bill is putting in place, which he conceded will result in more people being remanded. That is clearly going to place a burden on the court system and on police and bail justices, but particularly on the court system because this bill also makes a change so that only a court can consider schedule 1 offences. That means an awful lot more bail applications will be considered by the courts than is currently the case and that are now considered by bail justices and by the police.

I return to my original point. I am very concerned that the government is rushing ahead with this part of the reforms without the other parts of the reforms, because they really do need to all work together to make sure, as far as possible, that there is justice in terms of bail and refusing bail for accused and that there is the ability for the courts and the police to cope with the changes.

I just wanted to refer briefly to Mr Coghlan's report. Again, as I said, it is written very clearly. If people who are not familiar with the bail system and how it works read this report, they would become very familiar with how it works. I recommend that everybody who has an interest in this issue, not only members of Parliament but also members of the community who want to understand how the bail system works and what these changes will mean, should read this report because it is written in very plain language that can be understood. It is not written in legalese. He started out by saying:

The provisions relating to bail in Victoria are already very strict. I do not consider that the Bail Act 1977 (the Bail Act) needs a major overhaul in terms of its theoretical underpinnings. In particular, I consider that there should continue to be a general presumption for bail, subject to the reverse onus and unacceptable risk tests.

That is basically what he has done in his report.

I now turn to the exchange that Mr Rich-Phillips and I had earlier about bail being a privilege. The report states that there should be a general presumption for bail, as already exists in the act. Mr Coghlan says later on in his report that there is a general entitlement to bail in Victoria under the Bail Act. It is not a privilege, it is a right. It is a right that is qualified. That is what it is. He goes on to say in the executive summary that the Bail Act is difficult to follow and apply, which I have already spoken about, and it is difficult to work out which offences are in the reverse onus categories et cetera. He considered that there needed to be a greater emphasis on risk and proposed the rewriting of section 4 to place the assessment of risk up-front and to retain the reverse onus categories and clarify that both those categories involve a two-step process. He said:

The 'show cause' category would become the 'show good reason' category, with new offences added … The offences to which the reverse onus provisions apply would be set out in schedules …

He also considered that emphasis should be placed on offending whilst on bail, making it harder for people who have offended while on bail to have further bails granted. Mr Coghlan goes on in his review to talk about the number of people that come before the courts who have a number of bail applications at the one time. He suggested that the people who can currently make bail decisions be retained — the police, bail justices, courts et cetera. But as I have mentioned, there are some changes in terms of schedule 1 offences being only heard in the courts. He noted:

… the decisions of bail justices are largely uncontroversial. They consider bail in a very small number of cases and mostly refuse bail.

He recommended that bail justices should be retained and the police should be able to apply to a duty magistrate for a stay of bail granted by a bail justice.

In his review Mr Coghlan does in fact speak a lot about bail justices and the service they have provided to the community. Everyone knows there was a lot of concern about the decision made by a bail justice to release the offender prior to the 20 January tragedy when people were killed and injured in Bourke Street. As Mr Coghlan says, they make many decisions every night during the week and on weekends.

On pages 84 to 89 of his review he also talks about the advantages of bail justices. He lists the advantages and disadvantages. There are 20 advantages and nine disadvantages. The advantages of having them far outnumber the disadvantages, not only in quantity but also in quality. He lists advantages such as:

they are drawn from local community and reflect community values;

they are independent of the police;

they can make a welfare assessment of the applicant and field complaints about an applicant's treatment whilst in police custody;

they can witness interactions between police and an accused …

they are available at short notice;

they are inexpensive …

they are willing to travel considerable distances late in the evening and in the early hours of the morning;


they are chosen randomly from a roster.

He stated that some of the disadvantages included that they have no legal training, although they do receive training. He also makes the point that in the vast majority of cases, over 85 per cent, they actually do refuse bail.

I think a lot of the criticism of the bail justices at the time, notwithstanding the tragic circumstances, overlooked the service that they do provide to the community. In fact as far back as 2008 I raised as an adjournment matter the need for bail justices to be better recompensed for the expenses that they incur while travelling large distances at short notice in the middle of the night and on the weekend to hear bail applications. It is good to see that their services will be retained.

In the review Mr Coghlan also said that he has:

… met with the complex needs review, which is reviewing the effectiveness of legislation and service frameworks in managing the risks of violence by persons with multiple and complex needs, both within and outside the criminal justice system. Other related work includes the Review of Youth Support, Youth Diversion and Youth Justice Services …

which is due to report in the middle of this year. So I think there is still more to come in addition to his second advice to government, which I have also mentioned.

In terms of bail too, he also says that it should be realised that hundreds of bail decisions are made across Victoria ever day by the police, bail justices, magistrates and judges. So thousands of people are on bail in Victoria every day, and the overwhelming majority of these decisions do not attract controversy and a large majority of accused persons on bail do not breach their bail. He said:

However, in recent times, there has been significant publicity about armed robberies, aggravated burglaries and carjackings. It is the public perception that many of the alleged offenders have been on bail. That situation has probably led to some undermining of the confidence in the criminal justice system. It was in that context that the events of 20 January 2017 occurred.

He went on to say that the fact that the offender was on bail has caused significant community concern about whether the bail system is working properly and has prompted this review. He also went on to say that:

Victoria's bail system has a general entitlement to bail, subject to the unacceptable risk test and two reverse onus categories (the exceptional circumstances and show-cause categories).

He said:

Ultimately, the question is how to ensure that the right people are on remand. It is untenable from a practical viewpoint, and undesirable from a principled viewpoint, to simply remand more and more people, although mere numbers cannot govern who should be on remand.

And as Mr Somyurek said as well, the data actually shows, despite the public perception and the media coverage, that more people are being denied bail now than in the past. Bail is refused much more often now than it was five years ago. For example, the report states:

… from 2015–16 Magistrates Court data shows that 33 per cent of bail applications were refused, compared to 2011–12, when 21 per cent of applications were refused. Bail justices are also remanding a slightly higher percentage of applications before them …

It is more than 85 per cent now compared to 83 per cent in 2015. He also said that the data in relation to young people follows similar trends:

Department of Health and Human Services (DHHS) data shows that approximately half the young people in youth detention are on remand (99 out of 200).

This is a point that the Greens, and in particular my colleague Ms Springle, have made many times with regard to the issues of youth justice: that we are talking about young people who have been remanded in custody who have not been convicted of any crime. Of course the problems of the overcrowding in the youth justice centres has been caused by too many young people being remanded in custody. But this also applies across the whole of the criminal justice system with the increase in the number of people on remand, and this bill will lead to more of that.

When he talked about the problems with the Bail Act he said it has been amended many times since its enactment in 1977. It is 40 years old this year, and it has been amended many times since I have been in this place. As I have pointed out before and as he pointed out in his review:

This has resulted in a complex, cumbersome act, which has significant internal inconsistencies and is difficult to read, understand and apply.

As was previously noted by the Victorian Law Reform Commission (VLRC) in its report in 2007 — 10 years ago — the act needs to be rewritten. It is not what is happening here; we are actually just amending it again. So more amendments to the Bail Act.

Mr Coghlan said it would be preferable for the act itself to work properly and for its provisions to be as clear and transparent as possible. He noted on page 24 of his review that due to the nature and the time constraints that were put on him to do the review quickly he was unable to consult with many interested parties, and he recommended that there be further consultation on the recommendations, particularly in relation to the schedules, and that this would assist with the workability of the proposals and minimise the risks of unintended consequences, which include people being remanded when they need not be and are not posing a risk.

Of course that has not happened, and many in the legal profession — the Law institute of Victoria, Liberty Victoria et cetera — raised a number of concerns about the offences that are included in the schedules, as I mentioned earlier. Historically — he did not say this, but I am saying it — if you go back to the late 15th century the bail laws were actually introduced in the United Kingdom by a much-maligned Richard III, who was apparently, according to Shakespeare, a hunchback et cetera, but this was actually just Tudor propaganda and he was not a hunchback. In fact in the context of the times he was a reforming and progressive leader who introduced bail laws and a whole lot of other reforms into the Parliament, including conducting the Parliament in English. But that is how far they go back, and the reason for it was that an awful lot of people were being confined in dungeons and other very unpleasant places, accused and just held in custody indefinitely. That was the way it was done; that was the default position — that you were held in custody.

Unless you were wealthy and were able to persuade a judge to let you out of incarceration, you stayed there at the pleasure of the judges, the courts and the king. So that was when the bail laws were introduced.

I will go back to what Mr Coghlan said, which was:

The primary purpose of bail laws, at least historically, has been to ensure an accused's attendance at court.

So that if someone is released on bail, a surety and conditions are applied to ensure they actually turn up to court when they are meant to. Mr Coghlan goes on to say:

This may not be well understood by the general public.

He also said:

… the other important purpose of bail laws — to manage risks that might arise while an accused person is on bail and ensure the safety of the community — is taking greater precedence among the broader community.

Mr Coghlan recommended a rewording of section 4, which is the unacceptable risk test, so that when a person is brought to a bail decision-maker the first thing is for the prosecution or informant to make out the case that there is an unacceptable risk. My first amendment that I circulated goes to rewording that section 4, the unacceptable risk test, so that it would say that bail must be refused if there is an unacceptable risk that the accused, if released on bail, would:

(A)  endanger the safety or welfare of any person —

including a member of the public —

(B)   commit an offence; or

(C)   interfere with witnesses or otherwise obstruct the course of justice whether in relation to the accused or any other person; or

(D)  fail to appear in court in answer to bail.

This is not completely different from the existing section 4, but goes to Mr Coghlan's point that the section needs to be clearer and also prioritised. At the moment item (A) is 'fail to appear in court', and Mr Coghlan has recommended making that item (D). That would make the unacceptable risk test clearer and also more in line with the public safety purposes and guiding principles put in place in the act.

The second amendment that I have proposed concerns the criteria or the factors that should be considered by bail decision-makers in determining whether to refuse bail under section 4(3). This should be read in conjunction with the new schedules that add a whole lot more offences to 'exceptional circumstances' and 'show cause' provisions. That would mean that the bail decision-maker would have to take into consideration:

(a)    the nature and seriousness of the alleged offending, including whether or not it is a serious example of the offence;

(b)   the strength of the evidence against the accused;

(c)    the criminal history of the accused —

that is, have they been accused of this crime before —

(d)   compliance by the accused with any previous grants of bail;

(e)    whether the accused is alleged to have committed the offence

(i)    while on bail for another offence; or

(ii)   while subject to a summons to answer to a charge for another offence; or

(iii)  while at large; or

(iv)  during the period of a community correction order made in respect of the accused for another offence or while otherwise serving a sentence for another offence; or

(v)   while released under a parole order;

(f)    the personal circumstances, associations, home environment and background of the accused;

(g)   any special vulnerability of the accused, including by reason of youth, being an Aboriginal person, ill health, cognitive impairment, intellectual disability or mental health;

(h)   the availability of bail support services —

which include drug and alcohol services —

(i)    any view, or likely view, of the alleged victim of the offence to the grant of bail;

(j)    the length of time the accused is likely to spend in custody if bail is refused …

This is very important because more and more people are spending longer periods of time waiting for their case to come before the courts. This happens because the resourcing of the justice system has not allowed for the larger number of people on remand coming to court, including young people, as I mentioned before. The amendment continues:

(k)   the likely sentence should the accused be found guilty of the offence charged;

(1)   whether the accused has expressed publicly support for

(i)    a terrorist act or a terrorist organisation; or

(ii)   the provision of resources to a terrorist organisation.

So there are a large number of factors that a bail decision-maker needs to take into account when a person is either showing that there is an exceptional circumstances why they should be released or that there is good reason why they should be released. It is a balance of factors in favour of the accused and a balance of factors against the accused, so it is about half and half.

In terms of the introduction of the schedules with a broader range of offences, we really need to have a broader range of factors and guidance to decision-makers as to how they will apply these provisions to those offences to make sure that they remand the people in custody who need to be remanded because they fall under any of those factors.

These amendments stem from Mr Coghlan's review. Page 33 states:

The current tests for bail are complicated and confusing. Section 4 is a complex section both structurally and linguistically. It does not clearly state the various bail tests and the offences to which they apply. In particular, it is difficult to ascertain which offences are captured by the show-cause test without reference being made to multiple other statutes —

including the Crimes Act 1958 and the Magistrates Court Act 1989. Bail decision-makers have to refer to other acts as well.

Those are the main points I would like to make about this bill. It does not balance the schedules with the factors that need to be considered and it raises the bar on the 'show cause' provisions to 'show compelling reason', which was not recommended by Mr Coghlan.

I turn to the second-reading speech in the Legislative Assembly, which I take issue with in part because with regard to clarifying the tests for granting bail the Attorney-General said:

The bill changes the current wording of 'show cause' to 'show compelling reason'. A change in the wording of the show-cause test was recommended by Mr Coghlan, in order to make absolutely clear that persons who face this test are to be refused bail unless they show compelling reasons why it should be granted.

That is it is at best misleading and at worst completely inaccurate because that is not what Mr Coghlan said. He never used the word 'compelling' at all, so I find it quite concerning that that sort of statement is in the second-reading speech.

Further the Attorney-General said:

The bill does not otherwise alter the reverse onus tests which will continue to apply to schedule 1 and schedule 2 offences committed by an adult and a child.

Well, yes, it does. So that is another misleading and completely inaccurate statement in the second-reading speech.

Now I have had a go at second-reading speeches in this Parliament before, because they are meant to actually outline accurately and faithfully what a bill does. However, sometimes ministers just leave out complete swathes of a bill and do not mention them in the second-reading speech. At other times the speeches are inaccurate and misleading, such as in this case, and other times they are little more than media releases, but they are meant to be basically legal documents that tell the public what is in the bill, so I was pretty amazed to actually see that and to see also a second-reading speech make an inaccurate statement about a person and their recommendations. This was the person who the government commissioned to do a review and who did a good job on the review.

There are a lot of concerns with this legislation. As I said, I have circulated some amendments which I think are essential to making it even basically workable in a just way in order to get just outcomes not only for the accused applying for bail but for the public as well.

In Committee:

Clause 1

Ms PENNICUIK (Southern Metropolitan) — My question on clause 1 of the bill is quite a broad question. It is in regard to why the government decided to bring in a stage one bill to change the Bail Act 1977 rather than a consolidated bill that implements the recommendations of both the first and second advice to the Victorian government reports. As conceded by Mr Coghlan and raised by the Law Institute of Victoria and other stakeholders who made submissions to the review as listed in Mr Coghlan's reports, without the stage two implementations this bill will put a very large load on the courts and the system generally in terms of holding people in custody in police cells and in remand centres and parts of other jails having to be turned into remand centres et cetera. Why has the government done this, and what estimation has it made about the number of people who will be held on remand as a result of this bill?

Ms TIERNEY (Minister for Corrections) — I thank Ms Pennicuik for her range of questions. Hopefully we can work through them. Firstly, as I mentioned in my right of reply, we received Mr Coghlan's first report in April. Given the incident that occurred in January we believed there needed to be an initial timely response from government, and that is how we would characterise the bill before us today.

It creates a framework essentially for the second tranche of legislation that will come before the house before the end of this year. The bill provides a new purposes section and guiding principles to inform the community about the purpose of bail, and it will remind decision-makers of some of the important considerations that are relevant to bail, in particular the balancing of the presumption of innocence with the protection of the community.

Generally we have chosen a number of the recommendations in the report to come before the house now and there will be further work done on the more long-term, longstanding recommendations that require further consultation with key stakeholders such as Victoria Police, obviously Corrections Victoria and other departments.

Ms PENNICUIK (Southern Metropolitan) — I hear what the government is saying there, but the problem is that the bill as it stands is without the complementary recommendations. As you just said, Minister, that you have chosen some of the recommendations and you have chosen not to put some others in, but they are complementary. Even Mr Coghlan in his report advised that some of the schedules et cetera not be proceeded with until he gives his advice on stage two, which is the advice to remove some offences from the bail system so that the effect of overwhelming the courts does not happen and people who are not a risk to the community are not remanded in custody. That is the question, but the other half of my previous question was: has the government estimated how many people this will mean will be further remanded? We already have too many people in police cells and we already have an overcrowded remand centre.

Ms TIERNEY (Minister for Corrections) — The bill does make some significant changes to the bail system which will have an impact on a variety of stakeholders like, obviously, Corrections Victoria, the courts, as Ms Pennicuik mentioned, but also Victoria Police, and it will potentially increase the number of people held on remand. The commencement date of 1 July 2018 allows for time to plan for the impact of this increase and for measures to be introduced to manage this.

As I have indicated, there is ongoing work and ongoing modelling being done to try and work through what this might look like in terms of managing the numbers that will come through as a result of this. But it is, as noted in the Attorney-General's second-reading speech, the intention of the government that the reforms be commenced as soon as possible but we have just got to do some more work in terms of understanding what the consequential impact is going to be.

Ms PENNICUIK (Southern Metropolitan) — Thank you, Minister. I suppose it is difficult to say if you are still doing the modelling. I do not want to labour this too much longer, but I think it is a very important point, because we are putting in basically half the measures and not the other half, and that is going to have an impact. Mr Coghlan in his review even mentioned the fact that accused are waiting in police vans because they cannot fit into police cells due to overcrowding. This is not going to be good for either accused persons, the police, the corrections system, the courts or the general public. That is why he was suggesting that there be a whole package, and I am concerned that this part is going ahead without the ameliorating other parts of his recommendations that will come in his stage two review. But that is more of a statement than a question, Minister.

Ms TIERNEY (Minister for Corrections) — Again I reiterate the fact that the government was very keen to flag to the community what its take on that was in terms of the Coghlan recommendations. If we were to not go ahead with this part now, it would mean that we would not have anything to look at or have discussion in the community on regarding how we view changes to the bail system.

Ms PENNICUIK (Southern Metropolitan) — I just have to respond to that. I think you could still respond to the community by saying, 'We have legislation that will actually be a proper package' and make sure that the presumption of innocence, community safety and the ability of the justice, court and police systems to cope are all in fact addressed in the one package, and that is not what we have here.

Ms TIERNEY (Minister for Corrections) — It will be a whole package. It is just the way that it is cut and sliced at the moment. It provides a framework for that additional work that needs to be done.

Clause agreed to.

Clause 2

Ms PENNICUIK (Southern Metropolitan) — The commencement clause has the bill starting on 1 July 2018. I have heard the government say — it is in the second-reading speech, and the minister has mentioned it — that it would be earlier. Is the idea that this bill will commence earlier than the second half of the package or at the same time as the second half of the package?

Ms TIERNEY (Minister for Corrections) — At the same time.

Clause agreed to; clause 3 agreed to.

Clause 4

Ms PENNICUIK (Southern Metropolitan) — I have chosen to speak on clause 4 because clause 4 is the definition section and it defines who is a bail decision-maker, which includes a court, a bail justice, a police officer, a sheriff or a person authorised under the Infringements Act 2006. I will just turn to the paragraphs of Mr Coghlan's report with regard to police officers. I am not sure if you have that with you, Minister. At page 38, paragraph 4.33, he said:

It is unclear whether, for example, police officers considering the grant of bail are aware if an accused is in a show-cause position. Police officers (and bail justices) who release a person in a show-cause position on bail must submit the required form to explain their reasons for doing so. It seems that bail justices routinely do so, while police officers appear not to. This is despite police officers regularly granting bail to people in a show-cause position.

Just a bit further on, at paragraph 4.57, which is on page 47, and in the context of the discussion about some people being on multiple bails, Mr Coghlan said:

It appears that many multiple bails are granted at police stations. It is not known whether, or to what extent, police granting bail in such circumstances rigorously apply the show-cause and unacceptable risk tests.

I thought that was quite interesting. He also said that there may be a perception that not enough people are getting bail. Even though in the second-reading debate, stats were used to demonstrate more people are being remanded than was the case five years ago, it seems that they are more likely to be remanded by a bail justice or a court than by the police. My question really is: are the police trying to address this by better training for the decision-makers, who are usually people of a rank above sergeant, I think.

Ms TIERNEY (Minister for Training and Skills) — I am advised, Ms Pennicuik, that there will definitely be training. But in terms of the detail, I am more than happy to take that on notice.

Ms PENNICUIK (Southern Metropolitan) — I appreciate that the minister will have to take it on notice, but I suppose I am just raising the issue that there are actually a couple of other places in the report where Mr Coghlan mentioned the police not necessarily being across how they are supposed to be making decisions on show cause et cetera and either remanding or releasing people. If it is happening, that suggests the training is not working, so I would be interested to get the answer on notice, thank you.

Clause agreed to.

Clause 5

Ms PENNICUIK (Southern Metropolitan) — I move:

1.     Clause 5, lines 32 to 33, omit all words and expressions on these lines and insert—

'(3)  For section 4(2)(d)(i) of the Bail Act 1977 substitute—

“(i)   that there is an unacceptable risk that the accused if released on bail would—

(A)  endanger the safety or welfare of any person; or

(B)   commit an offence; or

(C)   interfere with witnesses or otherwise obstruct the course of justice whether in relation to the accused or any other person;


(D)  fail to appear in court in answer to bail.”.'.

This amendment is to replace the existing words in section 4(2)(d)(i) of the Bail Act 1977 and to substitute the words that are currently in the act with words recommended by Mr Coghlan. It goes to the issue that I was raising in the second-reading speech debate, which is that Mr Coghlan in many places in his review referred to the current wording in the act as being unclear, complicated and — you would even have to infer, if you read some of it — outdated and not easily understood by bail decision-makers. We have just been talking about how that could come about. This amendment is to replace that section that exists, which at the moment outlines the unacceptable risk where a person would be refused bail:

(d)   if the court is satisfied—

(i)    that there is an unacceptable risk that the accused if released on bail would—

fail to surrender himself into custody in answer to his bail —

the terminology is quite interesting there —

commit an offence whilst on bail;

endanger the safety or welfare of members of the public; or

interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person …

I would suggest that this wording needs to be altered anyway for reasons that are clear in that it is speaking about 'him' all the time.

That is one reason, but also it is not very clear language. The language that Mr Coghlan put forward, I think, is better and easier to understand and also puts the safety of persons as the first priority. He suggested that bail be refused if:

… there is an unacceptable risk that the accused if released on bail would:

(a)    endanger the safety or welfare of any person; and/or

(b)   commit an offence; and/or

(c)    interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or herself or any other person; and/or

(d)   fail to appear in court in answer to bail.

I do think that is clearer, and I make the point that I made in my contribution that if we are going to actually increase the number of offences in new schedules 1 and 2 that require exceptional circumstances or show-cause circumstances, then the language that goes around 'unacceptable risk' — I will talk about the other amendment as well — needs to be clear to decision-makers, and it is not. This bill has not done that, and a key recommendation Mr Coghlan made was that, in addition to the additional offences and the new schedules, the language be clarified to assist decision-makers. That is why I am moving the amendment.

Ms TIERNEY (Minister for Corrections) — Can I start by saying, in terms of the gender-specific language, it is outdated. It was 1977, and I have sought assurances from the advisers in the box that as a part of this review we will make sure that the language that is used is language that is not gender specific.

I will deal with both of Ms Pennicuik's amendments to this clause together in terms of my comments because this is really about a different approach — the approach of the government as opposed to the approach that Ms Pennicuik is seeking. To outline the reasoning behind our non-support for her amendments, I will put on the record the following. We consider that the Greens proposed amendments are piecemeal and incomplete in their response to three of Mr Coghlan's key recommendations which set out a new approach to making bail decisions. The government, as I said in my right of reply, has committed to implementing recommendations 2, 3 and 5 of Mr Coghlan's report but not until we have developed a comprehensive and cohesive legislative response. We would argue that simply implementing part of these recommendations makes little difference to the status quo.

In relation to the specifics of Ms Pennicuik's amendments 1 and 2, they would implement recommendations 3 and 5 of Mr Coghlan's report and, as noted in our response to Mr Coghlan's report, the government does not propose to implement recommendations 2, 3 and 5 at this stage. Recommendations 2, 3 and 5 are a series of recommendations about how bail decision-makers are to apply the unacceptable risk, show compelling reason and exceptional circumstances tests. These are linked recommendations, the substance of which is contained in recommendation 2, which seeks to clarify the order in which the tests are to be applied and who is to bear the onus in relation to these tests.

I note that these amendments do not contain any provisions to implement recommendation 2. The government has committed in principle to, as I said, implementing recommendations 2, 3 and 5, and we are giving further consideration as to how these are to be implemented in legislation. However, we consider it is important that these recommendations should be implemented together so that they can be implemented consistently and coherently. The government asserts that implementing only recommendations 3 and 5 at this stage, in the absence of any amendments to implement recommendation 2, will not make significant changes to the Bail Act.

In relation to amendment 1, implementing recommendation 3 will simply reorder the wording of the unacceptable risk test. It is only when combined with recommendation 2 that the unacceptable risk test is substantially altered in our opinion. With amendment 2 we would add to the list of factors to be taken into account when making bail decisions. However, the act currently requires a bail decision-maker to take into account all relevant matters. There is nothing to prevent a bail decision-maker taking these things into account under the current act, we would argue. As drafted, amendment 2 may operate to limit this discretion as it does not make clear whether a bail decision-maker can take into account a matter not on the list.

Ms PENNICUIK (Southern Metropolitan) — Thank you for that that response, Minister, which is a bit more fulsome than the one I got from the Attorney-General's office when my office wrote to him about this particular issue. I take some of your points, but I still maintain that while in your response you were saying these amendments refer to the show-cause provisions and the unacceptable risk tests — and these remain in the act — the show-cause provisions have been significantly altered and there has been no balance of the change and how to actually apply those provisions. The point has been made several times in many places throughout the Coghlan report that the current language is not clear.

Notwithstanding what the minister said about recommendation 2, I still think that this rewording of section 4(2)(d)(i) could stand alone as it is without reference to recommendation 2 because it is really just a better wording of what exists in the act. The minister agrees, apart from the lack of clarity, that that section needs rewording to bring it into line with modern standards in terms of not being gender specific, so I still would like to proceed with the amendment.

Ms PENNICUIK (Southern Metropolitan) — I move:

2.     Clause 5, page 6, lines 8 to 10, omit all words and expressions on these lines and insert —

'(6)  For section 4(3) of the Bail Act 1977 substitute —

“(3)  In determining whether to refuse bail under this section, a bail decision maker is to consider the following matters —

(a)    the nature and seriousness of the alleged offending, including whether or not it is a serious example of the offence;

(b)   the strength of the evidence against the accused;

(c)    the criminal history of the accused;

(d)   compliance by the accused with any previous grants of bail;

(e)    whether the accused is alleged to have committed the offence

(i)    while on bail for another offence; or

(ii)   while subject to a summons to answer to a charge for another offence; or

(iii)  while at large; or

(iv)  during the period of a community correction order made in respect of the accused for another offence or while otherwise serving a sentence for another offence; or

(v)   while released under a parole order;

(f)    the personal circumstances, associations, home environment and background of the accused;

(g)   any special vulnerability of the accused, including by reason of youth, being an Aboriginal person, ill health, cognitive impairment, intellectual disability or mental health;

(h)   the availability of bail support services;

(i)    any view, or likely view, of the alleged victim of the offence to the grant of bail;

(j)    the length of time the accused is likely to spend in custody if bail is refused;

(k)   the likely sentence should the accused be found guilty of the offence charged;

(1)   whether the accused has expressed publicly support for

(i)    a terrorist act or a terrorist organisation; or

(ii)   the provision of resources to a terrorist organisation.

(3A) In this section —

at large means a person who has failed to appear at court and is subject to a warrant to arrest that has been issued but not yet executed.

(3B) A bail decision maker considering granting bail to an accused under this section must consider whether or not any conditions could be imposed to reduce any risks associated with the granting of bail.”.'.

This amendment would substitute the existing section 4(3) of the Bail Act 1977 with a larger number of factors which a bail decision-maker would need to take into account in determining whether to refuse bail. Currently under the act there are seven factors. One of those relates to terrorism acts or provision of resources to a terrorist organisation and was only added last year. Some of these factors are not clear. They certainly could be clearer for decision-makers. There are a further 10 factors that Mr Coghlan recommended be included, along with some rewording of the existing factors. This amendment adds another 10 factors, as outlined in recommendation 5 from Mr Coghlan. Some of those are the rewording of existing factors and adding to them, and others are new. As I said before, because we are adding so many more offences and making such significant changes to the show-cause provisions, there needs to be further guidance as to the level of detail and number of factors both in favour of the accused and against the accused — or potentially against the accused — to assist decision-makers, particularly police and bail justices.

Ms TIERNEY (Minister for Training and Skills) — I do not believe that was actually a question. It was more of a statement. I put the government's position when I was dealing with amendments 1 and 2 concurrently.

Honourable members interjecting.

Ms PENNICUIK (Southern Metropolitan) — I did not hear a word the minister said. It was not a question — I was moving my amendment.

Ms PENNICUIK (Southern Metropolitan) — I move:

3.     Clause 5, page 6, line 18, omit “compelling” and insert “good”.

4.     Clause 5, page 6, line 26, omit “compelling” and insert “good”.

They change the phrase 'show compelling reason' to 'show good reason', as was recommended by Mr Coghlan. All he recommended in terms of the two categories of show-cause provision is that they be reworded so that they are more readily understandable by bail decision-makers, the general public and the accused for that matter. He recommended the wording 'show good reason' and not 'show compelling reason'.

My amendments 3 and 4 are to subclause (7)(b) and subclause (8) on page 6 of the bill. I think these are the most important amendments I am moving today because, as I mentioned in my contribution to the second-reading debate, the word 'compelling' sets a much higher bar than 'good'. 'Good' is what it is meant to be and how the test in the act is currently understood. The level of 'show good reason' — or 'good reasons', because there could be more than one reason why you should be granted bail — is very different from 'show compelling reason'.

In summing up the minister mentioned that they were about the same, so I thought, 'Well, let's have a look at the dictionary'. The dictionary defines 'good' as 'satisfactory' — show a satisfactory reason. In terms of the definition of 'compelling' the dictionary says 'a powerful or an irresistible reason', which is a lot different from satisfactory. It is more akin to exceptional, which means rare or extraordinary. I make the case that the word 'compelling' brings that bar too close to 'exceptional' for schedule 2 offences. The schedule 2 offences should have the word 'good' — which means satisfactory — 'reason'. In relation to the schedule 1 offences, which are the more serious offences, I am happy for that wording to stay at 'exceptional reason'. That is why I am moving the amendments.

Ms PATTEN (Northern Metropolitan) — I would like to speak on Ms Pennicuik's amendments, which really return this bill to the way it should be — the way that Mr Coghlan recommended. The government asked Mr Coghlan to review our bail system and to make recommendations, and he recommended that the wording should be 'show good reason'. It is that second tier of our bail system. The suggestion is that 'good' and 'compelling' mean the same thing. I think Mrs Peulich as a former English teacher would agree with me that 'good' and 'compelling' are very different.

The Attorney-General said to me in a letter that 'good' and 'compelling' are consistent with and in the spirit of the recommendation. This is not the case; this is not in the spirit of the recommendation. This creates a much higher level. There is very little difference now between 'exceptional circumstances' and 'compelling reason', so I, too, support keeping Mr Coghlan's recommendation to use 'good' reason over 'compelling' reason. I support these amendments.

Ms TIERNEY (Minister for Training and Skills) — I think it is important that the government puts on record its position in relation to Ms Pennicuik's amendments 3 and 4 to clause 5, and indeed we hold the same view in relation to amendment 5 as well. That essentially is that these amendments alter the proposed 'show compelling reason' test to a 'show good reason' test. The current wording of this test is 'show cause'. Mr Coghlan recommended that the wording be changed because he found that 'show cause' was poorly understood. He considered it ought to be replaced with wording that made it absolutely clear that the onus to show why bail ought to be granted was borne by an accused person in this category.

The government has decided to replace 'show cause' with 'show compelling reason'. We believe this is consistent with the spirit of the recommendation. I know both members have put their points of view in relation to that, but we believe this wording makes it clear that an accused in this category must provide a reason or reasons why bail ought to be granted and that it must be a compelling reason or reasons.

Wording such as this is necessary in response to what Mr Coghlan described as a 'watering down of the show-cause test'. This test still falls well short of the other reverse onus tests which require a person to show exceptional circumstances why bail ought to be granted. This is the test that applies to the most serious offences such as murder and large commercial drug trafficking. Requiring a compelling reason is not an equivalent test. It remains a lower hurdle than 'exceptional circumstances'. That is the rationale behind the government's position.

Ms PENNICUIK (Southern Metropolitan) — Again, the government is skewing what has been said by Mr Coghlan in his report. Nowhere did he say that the bar for 'show cause' needed to be increased. He never said that anywhere. He just said that the phrase 'show cause' was not well understood and he recommended replacing it with 'show good reason'. If he had thought that the bar needed to be raised for schedule 2 offences, he would have said so. He did not say so. He did not recommend 'compelling reason'. The word compelling is not in the spirit of anything that was said in the report by Mr Coghlan.

This is a case where words mean a lot. Mr Coghlan has already conceded in his report, as have a number of submitters, that these changes will result in more people being remanded in custody. This raising of the bar for less serious offences will only exacerbate that and there is absolutely no reason for it put forward in his review or in any other reading of the Bail Act as it stands for the different types of offences that are in the two schedules.

I just say once again that the definitions of 'compelling' and 'good', as I am sure would be seen from the dictionary, are completely different. The raising of that bar by the government and the arbitrary using of a different term will have quite a significant effect on how this legislation operates. This really is a serious amendment. The government should consider it seriously and follow the recommendation that was made by its own review.

Clause 13

Ms PENNICUIK (Southern Metropolitan) — In light of the recent amendments being lost I will not be proceeding with amendment 5, which is in fact the same amendment or just an amendment to change the heading with regard to show-cause provisions. My question is with regard to some offences that have been added to schedule 2, such as, on page 25, the offences of culpable driving, dangerous driving and dangerous or negligent driving.

It has been put that those offences are usually charged on summons — that is, that someone is not arrested by the police and then granted bail, either by the police or a bail justice, but they are actually charged on summons. I am not sure if any of the other offences are, but the question is: with offences that are charged on summons, how can they be practically dealt with under this provision?

Ms TIERNEY (Minister for Corrections) — Ms Pennicuik, thank you for that question. If charged on summons, the question of bail is irrelevant unless the person fails to appear and then a warrant is issued. The person is arrested and will have to show a compelling reason.

Ms PENNICUIK (Southern Metropolitan) — So that is if they are arrested after the summons has been issued?

Ms TIERNEY (Minister for Corrections) — Yes.

Ms PENNICUIK (Southern Metropolitan) — But at the time of the summons they would not be caught up in this provision?

Ms TIERNEY (Minister for Corrections) — No, that is right.

Ms PENNICUIK (Southern Metropolitan) — Okay. Thank you, Minister.

Clause agreed to; clauses 14 to 29 agreed to.

Reported to house without amendment.

Report adopted.