Bail Amendment Bill 2015

Ms PENNICUIK (Southern Metropolitan) — The bill that we are dealing with here now, the Bail Amendment Bill 2015, is in three parts and deals with changes to both the Bail Act 1977 and the Children, Youth and Families Act 2005. Part 2 of the bill deals with changes to the Bail Act with regard to terrorism-related offences, serious offences and failure to answer bail; and it inserts a new section to deal with bail provisions relating to children. Part 3 of the bill amends the Children, Youth and Families Act again to go to specific issues to do with children with regard to proceedings against children and publication about children in the courts.

If I can, I will turn first to the changes that the bill makes to the Bail Act and the Children, Youth and Families Act with regard to children. Under clause 16 the bill removes the offence of breaking a condition of bail when it relates to children; under clause 10 it creates new child-specific factors that address the particular needs of children to be considered in bail decisions as to whether to remand a child in custody; under clause 13 it provides that, if a court refuses bail to a child, the court must not remand a child in custody for a period longer than 21 days; and when a child is brought before a court on the expiry of a period of remand in custody, the court must not then remand the child in custody for a further period longer than 21 days.

Under part 3, in clause 20, the bill creates a presumption in favour of initiating criminal proceedings against children by summons rather than by arrest. This is to align with Victoria Police best practice and certainly to align with the best interests of children.

These reforms that the bill puts in place with regard to children we strongly support, they are supported by the legal community and groups such as the Law Institute of Victoria (LIV), Youthlaw, Liberty Victoria and others have particularly made public their support for these amendments.

Last year I wrote to the Attorney-General about the particular issue of the number of children being remanded in custody. I wrote to him about the concerns that were expressed by the Victorian commissioner for children, Bernie Geary, and the former president of the Children's Court, Peter Couzens, that there had been a 50 per cent surge in the number of young people under 18 being refused bail between October and the end of December in 2014 compared to the same time in 2013. Most people blamed this surge on changes to the Bail Act that were made in 2013 by the previous government, which included the introduction of a new offence of breaking a condition of bail but lacked child-specific criteria attached to it in the Bail Act.

I raised these concerns with the Attorney-General last year and asked him to take action to address this issue, including that children be excluded from the show-cause provisions of the Bail Act and that the government add child-specific criteria similar to what is found in the sentencing provisions already in the Children, Youth and Families Act.

As far back as 2007 the Victorian Law Reform Commission (VLRC) in its final report on the Bail Act stated that children are particularly vulnerable in their dealings with the criminal justice system. We agree with that and are of the view that it makes sense when considering bail for children to focus as much as possible on the criteria that this bill emphasises — that is, preserving the child's relationship with their family and carers, not having their living arrangements disturbed, supporting their continuing education and training, and minimising stigma, all of which are addressed in this bill by adding the child-specific criteria to be considered in bail applications in relation to children and young people under clause 10.

We also fully support removing children from the offence of breaking a bail condition under clause 16 and also for providing a presumption of initiating criminal proceedings against children by way of summons rather than arrest under clause 20. This is in response to concerns that have been raised by the legal community and even DHHS, and there have been instances when police should have proceeded with a matter by way of summons rather than arrest. This presumption to proceed by way of summons also assists in ensuring that decisions on how criminal proceedings are initiated are more consistent and will overcome concerns that there can be no rhyme or reason why police may decide to charge in some instances and then use summonses in others, as noted in the VLRC's report.

The other provision relating to children is that the bill expands who can grant permission for the publication of the identity of those involved in Children's Court proceedings from the President of the Children's Court to any of the Children's Court magistrates. This power will be available in emergency situations where disclosure is reasonably necessary and the court is convinced that the disclosure is reasonably necessary for the safety of an individual, including the child, or the community.

We are very happy to support these amendments. I know that all MPs will have been written to by Youthlaw, the Law Institute of Victoria and also Mr Andrew Jackomos, who is the commissioner for Aboriginal children and young people, urging us to support these provisions with regard to children and young people in the Bail Act and the Children, Youth and Families Act. At the end of letter that was sent to us by the commissioner for Aboriginal children and young people, where he urges us to support these provisions, the commissioner asks us to call for more actions to prevent children becoming an entrenched part of the justice system from the age of 10 years and to advocate for an increase in community-based diversion initiatives for young people. I agree wholeheartedly with that. It is an issue that I have raised before: that we have a gap in the justice system where there is not a presumption for diversion to youth diversion programs in the Children, Youth and Families Act, which there should be, to mirror what is in the Sentencing Act 1991 for adults. That is something I think — and I have raised this before — the government should be paying attention to and should in fact rectify at its earliest opportunity.

Ms Shing — Judiciously.

Ms PENNICUIK — And even that.

The other provisions in the bill, which you could say are really at the opposite end of the scale from what I have been discussing — which is provisions relating to children and young people who come before the courts — relate to serious offences and some changes to the Bail Act with regard to criteria for granting, or not, of bail for persons charged with serious offences or charged with other offences and the addition of criteria that will be taken into account by the decision-maker when considering whether or not to grant bail.

For example, under clause 4, persons charged with the Victorian terrorism offences of either intentionally providing documents or information to facilitate a terrorist attack under section 4B(1) of the Terrorism (Community Protection) Act 2003 or hindering the exercise of special police powers to combat terrorism under section 21A of the act must demonstrate exceptional circumstances in order to be granted bail. This in fact reverses the presumption of bail in favour of bail in this regard.

It is worth saying two things at the start. The Bail Act presumes that people will get bail unless there are reasons why they would not get bail. That would include if exceptional circumstances exist, and there are already some offences to which this applies. This bill is adding two more offences. It is also very important to state that we as the Parliament, the government and the people of Victoria must do all we can to protect the community from acts of terrorism, but we must also uphold the rights of those who are accused, and who of course are innocent until proven guilty, to ensure that unjust detention does not occur. In this context some concerns have been raised about this bill in regard to that.

At the federal level the commonwealth Crimes Act 1914 says bail will not be granted if the defendant has been charged or convicted of a terrorism offence unless exceptional circumstances exist — so far it is very similar to what this bill is doing. However, whilst a terrorism offence under the commonwealth law includes providing documents or information to facilitate a terrorist act — similar to section 4B(1) of our Victorian act — the commonwealth criminal code does not refer to hindering the exercise of special police powers to combat terrorism. This is not covered under the commonwealth bail consideration, so there is a difference.

There have been some concerns raised with us about the difference in severity between these two offences, such that with the first offence, which is intentionally providing documents or information to facilitate a terrorist act — clearly a very serious offence to which is attached a very high penalty — the case for adding that to the list of offences for which exceptional circumstances must apply is fairly easy to make.

There have been some concerns raised with us about the second offence, which is that of hindering the exercise of special police powers to combat terrorism, under section 21W. That is because that is not seen — and certainly it is not reflected in the penalty attached to it, which is 100 penalty units or up to two years imprisonment or both — as having the same level of severity. So the reflection in the penalty but also in the actual offence is not seen by some in the legal community to be on the same level of severity. The two offences are being put in the same provision, but one is a very serious offence and one can be seen as a less serious offence. It certainly could be, as some have pointed out, a charge that is very easily laid. Maybe it was something that occurred as an impulsive act and not a premeditated serious offence.

The Greens have had some conversations to and fro with the minister's advisors about this particular issue, and in terms of the second offence we raised the issue of perhaps whether it would be best to make that a show-cause offence rather than an exceptional circumstances offence. One of the reasons for that is that in terms of maintaining the exceptional nature of the exceptional provisions we should ensure that they in fact are always exceptional and that we do not start adding lesser offences to them. That is one of the arguments that is being put forward. Requiring that exceptional circumstances for bail be just for exceptional and very serious offences is pretty well what I am trying to say. This is an issue that I think warrants further investigation in the committee stage, and I certainly will be asking the minister questions about that particular issue.

The Scrutiny of Acts and Regulations Committee (SARC) also raised concerns about this particular provision. It said in its report that it is concerned that this summary offence — so it is not an indictable offence — which is punishable by a maximum of two years would attract the highest threshold to be satisfied before bail is granted. The committee wrote to the minister asking whether the bill reasonably limits the charter right of a person awaiting trial not to be automatically detained.

The committee also referred to the government's own argument that similar ACT legislation, found to be incompatible with its own charter, can be distinguished from Victoria because of different wording in the ACT charter and because of differences between the offences covered in the ACT legislation and this bill. However, SARC argued that the bills were more similar than different and so it still required a response from the minister. I have read the response from the minister, but I am not sure that it really addresses the concerns as raised by SARC, so that is something that I would wish to question the minister on when we get to the committee stage.

Clause 5 inserts a new provision in the act which states that a person's public support for terrorist acts or terrorism organisations and the provision of resources to a terrorist organisation can be taken into account when assessing whether a person would pose an unacceptable risk if bail was granted. Stakeholders such as the Law Institute of Victoria have raised concerns that the term public support for 'a terrorist act or a terrorist organisation' is very broad. We have also raised concerns about this, and we feel it needs clarification. We have also raised concerns about the wording of public support for 'the provision of resources to a terrorist organisation'. What is the intended meaning of those words? Is it that a person has actually provided resources or that they have publicly supported the provision of resources by other persons?

In my conversations with the minister's adviser I have also raised the fact that there are other expressions of support, such as covert or non-public ones, which may in fact be more concerning then public expressions. While we can accept the argument the government is trying to make here, quite a few questions have also been raised by this wording and whether it is needed at all. This goes to an issue we have raised many times before, which is that under the Bail Act it is already the case that the decision-maker has to take into account anything that is reasonably relevant and is raised by either the police or the prosecution, who may be opposing bail.

It would seem to me that if a person has engaged in these particular activities, such as publicly supporting a terrorist act or a terrorism organisation, this would be raised by police or the prosecution. It seems unlikely to me that this would not be raised. I say this because the provisions that already exist in this section of the act are expressed very broadly; they are not very specific. These are questions that I think should be asked, because even when we are dealing with serious issues we should not be adding unnecessary provisions to a law that has served us fairly well over the years. Again these are questions that I would like to ask the minister once we get to the committee stage.

Other changes to the Bail Act include an increase in the maximum penalty from 12 months to 2 years for the offence of failure to appear on bail, which we are quite happy to support. This is under clause 8 of the bill.

Another interesting change is to reverse the presumption in favour of granting bail for people charged with serious offences, as defined in the Sentencing Act 1991, who have also been convicted of failing to appear in the previous five years. These people will be required to show cause as to why their continued detention in custody is not justified. That is under clause 7 of the bill. The Greens are fairly comfortable with this; however, I will be asking some questions of the minister because of the fact that serious offences would already be covered under exceptional circumstances and the criteria of having failed to appear in the previous five years is already a criteria under the act for consideration as to whether there would be an unacceptable risk of the person not appearing or failing to appear. It is already a criteria. It is a question about whether the bill is being repetitive of something that is already clearly in the act. The Bail Act will adopt the existing definition of 'serious offence' under the Sentencing Act 1991.

If I could now turn to the amendments that were circulated by the opposition, some of which go to amendments made by the bill to the bail conditions that apply to children and also the removal of presumption in favour of a summons for children. If you look at the amendments closely, you will see they take out quite large slabs of the bill. The Greens will not be supporting the amendments that are being circulated by the opposition with regard to the changes to the Bail Act with regard to children, or the Children, Youth and Families Act, nor will we be supporting the changes that are being circulated by the opposition with regard to the factors to be taken into account under section 4(3) of the Bail Act, which seems to just be a rewording of what I think is already debatable wording that I have already suggested I will ask questions about in committee. I am also not sure that the wording put forward by the opposition is an improvement on the current wording.

With those comments I look forward to what I think could be a very interesting committee stage of the bill.

Committee stage 11 February 2016

Ms.PENNICUIK (Southern Metropolitan) — The Greens will not be supporting the amendment moved by Mr Rich-Phillips to remove the amendment that is made by the bill to make it clear that there is a presumption to proceed by summons rather than by charge and arrest when dealing with children and young people. I think we are all aware that we do need, when dealing with children and young people in the justice system, to not start criminalising them at the first opportunity.

The minister has said — and I mentioned this in my speech in the second-reading debate — that this is already police best practice, possibly following on from the findings in the Victorian Law Reform Commission report on this issue that police have already moved in that direction. The comment made in that report is that there is often no rhyme or reason — I think it uses that phrase — given by the police for why they proceed one way or another, so at least we are making it clear in the act that the presumption is to proceed in that way first, unless there are reasons to not do that, which, as the minister has said, still allows arrest and charge to be the way forward.

If we are going to prevent children from going further into the justice system and being further criminalised, we need all these measures as well as the other measures that are in the bill and the other things that are not in the bill but are already out there in programs or in other areas of the law, including in the Children, Youth and Families Act 2005, to make sure that we divert children and young people out of the justice system as soon as possible.

Amendment negatived; clause agreed to; clauses 2 and 3 agreed to.

(Further amendment moved by the Opposition)

Ms PENNICUIK (Southern Metropolitan) — The Greens will not support this amendment either. We agree that for a serious offence to be added to the Bail Act 1977 section 4(2)(aa) it needs to be a very serious offence to appear in that section of the act. We agree that the offence under section 4B(1) of the Terrorism (Community Protection Act) 2003 is a serious offence, and that is reflected by its maximum penalty of 10 years imprisonment. We think that pretty well covers the territory in terms of adding a terrorism-related offence to the Bail Act and including it in the presumption against bail.

I note that 'exceptional circumstances' is not actually defined in the Bail Act, but of course I think everyone understands exceptional circumstances means exceptional, and of course that is of a higher order than a show cause. As I mentioned, and I know the minister touched on this in his summing up, it is still not entirely clear why it includes an offence that could be charged summarily and tried summarily and has a much lower penalty. In fact it does not I think in all cases, probably in most cases, involve the level of premeditation, malicious intent et cetera, and it could in some cases if a person is charged under section 21W — which is what I am talking about now and I should clarify, which is the obstruct or hinder a police officer or fail to comply with a direction by a police officer; generally that is what this provision is about — be done unintentionally, it could be done by accident, it could be done because someone is afraid, it could be done because someone does not understand and lots of things like that.

I take the committee back to the debate on the changes to the Terrorism (Community Protection) Amendment Bill 2015 and those special police powers, about which the Greens raised concerns that they were not subject to oversight by the court. We are concerned that the government really has not made the case as to why this particular provision or an offence under section 21W would not be subject to the lesser show cause, which would allow an offender to provide a reasonable excuse as to why they were hindering. Some of those excuses may be reasonable and not be an exceptional circumstance. I suppose that is where our concern is — that is, that something that could be tried summarily is not attracting a very high penalty and is not necessarily, probably not in most cases, involving premeditation and malicious behaviour and is being put in as an exceptional circumstance.

We know that under this section of the Bail Act there are some very serious crimes, but we are not sure that this is a serious crime. It has also been raised with us that there is an issue of putting something that is not seen to be amongst the most serious crimes in this particular part of the act. That is the issue that I am raising here.

Ms. PENNICUIK (Southern Metropolitan) — I thank the minister. I do understand that someone deliberately frustrating the police is a lot more serious than if someone is accidentally or failing to understand, or something like that. My concern really is if it is not rather that they have to show cause why they should not be granted bail rather than it being elevated to exceptional circumstances. It could mean that persons who are not deliberately frustrating et cetera will not be able to provide a reasonable excuse and therefore get bail.

  (Further debate here)

Ms PENNICUIK (Southern Metropolitan) — I do not intend to really labour this, but I have listened intently to what the minister said. It is my understanding that special police powers are not necessarily overseen by the court, because I can remember having this discussion on the last bill, and it was in fact said that the area for special police powers could be declared by a minister.

Anyway, that is slightly beside the point. I suppose I am just concerned that the provision under section 21W is 'obstruct or hinder', and the minister's example is of someone deliberately trying to obstruct and hinder. I am concerned about a person who is not deliberately doing that. They are not even able to provide a reasonable excuse, as I understand. That could happen in those circumstances because people will get caught up in there who have nothing to do with any terrorist act; they are just caught up in an area where there is an exercise of police powers. That is the issue. Some of those people may, because they are hindering — whether it is deliberate hindering or not — be put into custody. So then they come under this provision.

As I said, I do not want to labour the point. I accept what the government is saying. I do not necessarily agree with it, but I accept what the minister is saying.

Ms PENNICUIK (Southern Metropolitan) — The Attorney-General in his response to the Scrutiny of Acts and Regulations Committee did state on the second page of his letter that:

The new factor inserted by clause 5 concerns that links with terrorism may be relevant, without limiting the existing discretion.

These matters would arguably have been taken into account previously — that is, the existing provisions in the Bail Act which allow any circumstances to be considered by the court if they are relevant. It appears to me they would be considered if they were raised by the police or the prosecution and then the court would consider them. If they were an issue, they would be raised it seems.

I am just a little bit confused about the minister's answer with regard to my query regarding the second part, the wording — that is, the way it is worded in the two parts instead of one sentence. It says to publicly express support for the organisation or the provision of resources to the organisation. The minister used the example of fundraising.

It seems to me that is not covered by support for provision of resources; that is actually providing resources. I still maintain I think this wording is very clumsy. I am not sure how the courts are going to go with it, and I am also unsure about their interpretation of what constitutes support that then constitutes an unacceptable risk. I note that the Scrutiny of Acts and Regulations Committee (SARC) has made these points pretty strongly in its report, and the law institute has raised this as an issue. It does need to be considered. Perhaps we have a provision here that is probably not as good as it could be.