By Rachel Eddie
Warning to Aboriginal and Torres Strait Islander readers: This story contains images and references to a deceased person.
A proposal to fix Victoria’s controversial bail laws could still mean people accused of shoplifting dozens of times will land in jail, as a former chief magistrate warned that opening up bail applications has the potential to clog the courts.
Attorney-General Jaclyn Symes says the vast majority of cases involve people accused of two or three low-level offences.Credit: AAP
Attorney-General Jaclyn Symes introduced the bail bill on Tuesday to overhaul the law. The changes come after a coroner found the number of Aboriginal women in prison had more than doubled within one year of changes made in 2018 by unnecessarily incarcerating people accused of low-level offences.
Stakeholders and media were yet to see the full details of the bill, which will not be released until Wednesday.
Under the proposal, a person who is denied bail would be able to make subsequent bail applications without having to bring new facts. Coroner Simon McGregor recommended the change in his damning findings into the death in custody of Aboriginal woman Veronica Nelson.
Nicholas Papas – a former Victorian chief magistrate, crown prosecutor, and general manager of the criminal law division at Victoria Legal Aid – said that reform may well be positive but questioned whether there was a risk of an accused repeatedly making bail applications.
“To remove the barrier of fresh facts may well be a good move, but the question arises whether there will be a massive increase in applications,” Papas said.
He said anything that made bail applications simpler and permitted a court to judge an individual’s risks was a good thing, but that he had not seen enough detail to be certain that would be the case.
The attorney-general, though, said an accused could not go “magistrate shopping” to make continuous bail applications because she said they would be known within the court system.
Symes disputed that it could clog up the courts and suggested it could have the opposite effect by disincentivising an accused from making rushed bail applications without a lawyer.
Dan Nicholson, the executive director of criminal law at Victoria Legal Aid, said any suggestion it would busy the courts was unfounded. He noted the overall impact of the reforms would reduce the number of people presenting to the courts.
“Giving people a second application for bail ... will mean fewer unrepresented bail applications.”
As first revealed by The Age last month, bail-specific offences will be repealed under the proposal. Bail could be revoked, or stricter conditions could still be applied, as a consequence of repeat alleged offences while on bail.
The government tightened bail laws after James Gargasoulas killed six people in the 2017 Bourke Street massacre while on bail. The 2018 changes also expanded the “reverse onus” test, which required people who were accused of a wide range of offences to prove “compelling reasons” and “exceptional circumstances” to be granted bail.
Tributes to Veronica Nelson inside the Coroners Court during her inquest last year.Credit: Eddie Jim
The bill will abolish the “double uplift” provision for people accused of committing low-level offences while already on bail under the “unacceptable risk” test. The test will remain for other offences and cumulative low-level offences could still result in a person being remanded.
While the government will not scrap the “reverse onus” test, it will effectively limit it to those charged with more serious offences by removing the uplift clause for low-level offences.
“We don’t want a situation where you can just go and hit the same small business 20 times in shoplifting and not be remanded. You are not necessarily posing an unacceptable risk to hurting someone, but you are posing an unacceptable risk to that small business for instance,” Symes said.
She said the vast majority of cases involved people accused of two or three low-level offences, unlikely to be sentenced if found guilty, and that they should be spared under the proposal.
Ali Besiroglu, principal lawyer at Robinson Gill, the firm representing Nelson’s mother Aunty Donna Nelson, said it had been an “arduous and painful journey” and called on the government to implement the coroner’s recommendations in full to stop putting First Nations people at risk.
“Aunty Donna Nelson welcomes these long-overdue reforms to the Bail Act. However, she holds serious concerns that the amendments do not go far enough,” Besiroglu said.
Nelson’s family in March outlined their vision for change, referred to as Poccum’s Law, named after Nelson’s nickname as a child.
Nerita Waight, chief executive of the Victorian Aboriginal Legal Service, was concerned the Bail Act would become more complicated and only tinkered with the reverse onus provision. She said the government should commit to reviewing the legislation once it is implemented, after getting it wrong in the past.
The Victorian Aboriginal Legal Service’s Nerita Waight says the government should commit to routinely reviewing the Bail Act.
The Law Institute of Victoria, the Human Rights Law Centre and the Federation of Community Legal Centres all said the proposal did not go far enough.
The Police Association of Victoria, which has warned against watering down the law too much but agreed there was a legitimate case for reform, called on the government to release more detail.
“[Tuesday’s] announcement by the Victorian government on bail reform tries to encapsulate in a few short paragraphs what is arguably some of the most complex legislation within the criminal justice space,” the association said in a statement.
The association said it supported some elements of the reform it was consulted on, but urged careful consideration of other prospective changes it worried could compromise community safety.
Symes said the government had struck the right balance and that she was proud to deliver the reform. “[This is] what good governments should do, and that is admit that you didn’t get it right and do the best you can to make it better,” she said.
Opposition Leader John Pesutto said he would review the detail, but said that shadow attorney-general Michael O’Brien had been working productively with Symes.
“We all want a bail system that keeps the community safe but doesn’t see people on remand who don’t represent a risk to the community,” Pesutto said.
The Victorian Greens – which has called for wholesale change – said the party would work constructively with the government once they have seen the bill but echoed concerns it did not go far enough.
The bail system was thrown into the spotlight in January when the coroner handed down damning findings into the death in custody of Nelson and found the hardened reverse onus provision breached human rights.
Nelson, a 37-year-old Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman whose death was found to have been preventable, died alone in a cell at the Dame Phyllis Frost Centre in January 2020 with a rare gastrointestinal condition, opiate withdrawal and malnutrition. She had been arrested for shoplifting and failing to appear on bail.
Images contained in this story were released to the media with permission from the family. For crisis support run by Aboriginal and Torres Strait Islander people, contact 13YARN (13 92 76).
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