For a number of years, and particularly since the tragic events which unfolded in Bourke Street, Melbourne, in 2017, the issue of bail has been a contentious and political issue. More recently, the death of Veronica Nelson in custody (and the subsequent coronial inquest) has focused the minds of lawyers and politicians to the question: what is the most balanced form of bail which maintains community safety, but does not lead to the incarceration of low level offenders? 

Most recently, the Bail Amendment Bill 2023 received royal assent on 24 October 2023, with the amendments taking effect from 25 March of this year. The amendments introduced a plethora of changes to bail, including considerations for vulnerable community demographics, namely children and Aboriginal and Torres Strait Islander Peoples.

To summarise, the most important amendments include:

1. Amendments to the thresholds to be applied by bail decision-makers, including:

  • The removal of certain double uplift provisions;
  • Redefinition of the unacceptable risk test;
  • Offences for which bail cannot be refused.

2. Amendments to what bail decision makers must consider, including:

    • Whether accused is Aboriginal or Torres Strait Islander (s3A and 5AAA);
    • Whether accused is a child (s3B); and
    • Expansion of the ‘surrounding circumstances’ considerations

    3. The removal of specific Bail Act offences

    4. Amendments to new facts and circumstances considerations

    5. Amendments to subsequent applications for bail (section 18AA)

    Amendments to the Thresholds to be Applied by Bail Decision-Makers

    Removal of Double Uplift Provisions

    ‘Double uplift provisions’ refer to people who have committed offences whilst on bail having their test for bail uplifted to a more serious one. The amendments have removed this requirement, as schedule 2, Items 1 and 30 have been removed. This means that an allegation that the applicant has committed an indictable offence while on bail; or summons; or at large awaiting trial; or during a CCO/serving a sentence; or under parole for an indictable offence no longer attracts the exceptional circumstances/compelling reasons test (item 1) and same for offences against the Bail Act (formerly item 30).

    Redefinition of the Unacceptable Risk Test

    The amendments narrow the definition of ‘unacceptable risk’ to remove the stand-alone consideration of whether there is a risk that the bail applicant would commit an offence while on bail. 

    The consideration of whether there is a risk that the applicant would endanger the safety or welfare of any person, has also been expanded to a risk that they would ‘endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means’ (s13 BA).

    Offences for which Bail Cannot be Refused

    Additionally, the amendments establish that Bail must not be refused if the accused is only charged with offences under the Summary Offences Act 1966 [Inserted by s 4AAA]. However, there are still some exclusions (see new Schedule 3 – 13 offences). Excluded offences include sexual exposure, emergency worker provisions, public display of nazi symbols & common law assault.

    Amendments to what Bail Decision Makers must Consider

    Considerations concerning Aboriginal and Torres Strait Islander Peoples

    The amendments include a complete overhaul of section 3A. Specifically, these include:

    • s.3A(1) Consideration of Aboriginality: Bail decision-makers must factor in issues related to the person’s Aboriginality. This includes historical and ongoing discrimination, the overrepresentation in the criminal justice system, and the specific risks and trauma associated with custody for Aboriginal people.
    • s.3A(2) Evidence and Information: Decision-makers should base their considerations on evidence and information reasonably available at the time, including input from the person’s family, community, and Aboriginal bail support service providers.
    • s.3A(3) Mandatory Consideration of issues in s.3A(1)(a) to (c): Certain issues such as discrimination, risks of custody, and connection to culture MUST be considered regardless of the availability of specific evidence or information.
    • s.3A(4) Inclusive Consideration: The requirement to consider issues related to Aboriginality applies irrespective of the continuity of the person’s connection to their culture or when they first disclosed their Aboriginality.
    • s.3A(5) Documentation of reasons for refusal of bail: If bail is refused, the decision-maker must document the considerations related to Aboriginality and either state them orally, ensuring an audio or audio-visual recording, or record them in written form as deemed appropriate

    Considerations Concerning Children (s3B)

    The amendments include a complete rewrite of section s3B. The new section requires the court to take into account, amongst other things:

    1. the child’s age, maturity and stage of development at the time of the alleged offence;
    2. the need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being a last resort;
    3. 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.

    A full list of factors considered can be found here.

    As articulated in the Second Reading Speech, these amendments were introduced with the aim of keeping children out of custody and in the community, as this will encourage them to retain pro-social connections, leading to improved individual outcomes and enhanced community safety in the long term.

    Expansion of Surrounding Circumstances Criteria

    Under the changes, section 3AAA has been expanded with the addition of the following:

    • (aa) where probable time on remand exceeds likely sentence of imprisonment
    • Re-wording of (1)(h) – special vulnerability any special vulnerability of the accused, including—
      (i) being an Aboriginal person; or
      (ii) being a child; or
      (iii) experiencing any ill health, including mental illness; or
      (iiii)having a disability, including physical disability, intellectual disability and cognitive impairment;
    • accused on remand or at large awaiting sentence

        Removal of Specific Bail Act Offences

        The amendments repealed several offences that were previously included in the Bail Act. These include:

        • There is no longer a standalone offence to a breach a condition of bail (Section 30A has been removed)
        • There is no longer a standalone offence of commit an indictable offence whilst on bail (section 30B has been removed)
        • A police officer can no longer issue an infringement notice when a bail condition has been contravened (section 32A has been removed).

        These amendments are important, because it removes the ability for Police members to remand an accused person for low level breaches of bail. 

        Amendments to New Facts and Circumstances Considerations

        The amendments eliminate the requirement for new facts and circumstances in first or second bail applications following custody. Thus, all accused persons (including those who have had bail refused) may make two bail applications before showing new facts or circumstances (section 18AA). The significance of these amendments lie in the business of the Court. Most often, an accused person will come before the Court for the first time at a Filing Hearing or Mention, where the Court has very little time to consider a bail application. Similarly, the lawyers appearing will have only had a very short period of time to prepare the application. In those circumstances, an accused person can be dealt with expeditiously and without the benefit of enough time or resources to prepare and run a proper bail application. Prior to these amendments, regardless of the circumstances, the accused person could not make a second application for bail unless they could establish new facts and circumstances. Removing this requirement is both fair and reasonable, given how many matters progress through the Magistrates’ Court every day. 

        How Galbally Parker Bail Lawyers can Help

        Having a loved one remanded in custody is a very stressful experience and one that often takes you by surprise. However, in our firm, we regularly appear in bail applications. We can take the pressure and stress off you and maximise your loved one’s prospects of bail.

        If your loved one is on remand, contact our office to discuss the options available to you to make an application for bail.