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89
Monitoring operation of bail legislation
That, the operation of bail legislation should be closely monitored by each government to ensure that the entitlement to bail, as set out in the legislation, is being recognised in practice. Furthermore, the Commission recommends that the factors highlighted in this report as relevant to the granting of bail be closely considered by police administrators.
Priority for Further Work:
Moderate
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Monitor operation of bail reform
Monitor operation of bail reform, particularly s3A, to determine if the considerations improve bail outcomes for Aboriginal people. This may be conducted by VALS, Djirra or Victoria Legal Aid and reported to the AJC.
Improve data collection
Victoria Police and the Magistrates’ Court should improve data collection and publish data relating to Aboriginal people and the granting of bail, as per Coroner McGregor’s recommendations in the Veronica Nelson inquest. All data should be reported to the AJC for review.
Independent oversight
Investigate potential mechanisms for independent oversight of bail decision-making by police and courts.
Ensure statutory review before any amendments to bail laws
Do not amend bail laws for children or adults until a full statutory review can take place in 2026 that considers longitudinal data and assesses the systemic impact of Victoria’s bail laws.
Implement Poccum’s Law
Ensure any bail reform aligns with Poccum’s Law.
Implement the bail-related recommendations of significant previous inquires
Urgently implement related recommendations from previous inquires of significance including those outlined in the Yoorrook for Justice Report and the Commission for Children and Young People’s Always Was, Always Will be Koori Children, Our Youth, Our Way, In Our Own Words and Out of Sight reports.
Expand jurisdiction of Koori Court
Expand jurisdiction of Koori Court to hear bail applications.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) concluded that rigid bail practices, together with socioeconomic disadvantage, cultural obligations, communication challenges, and systemic shortcomings, unfairly limit Aboriginal people’s access to bail, resulting in avoidable detention and underscoring the need for stronger Aboriginal involvement in justice administration.
Several factors contributed to the needless detention of Aboriginal people in police custody:
- not having a fixed address (required to be released)
- prior non-attendance to court for reasons relating to physical disability, communication difficulties, lifestyle or cultural commitments such as Sorry Business
- difficulties in communication, language or understanding of bail processes
- lack of flexibility of bail procedures
- inadequate police resources and bureaucratic procedures in the supervision of bail.
Actions Taken Since Last Review
Victorian Government
The Coghlan Review
The Coghlan Review was initiated in response to the tragic Bourke Street incident in 2017, where six people were killed by a driver who had recently been released on bail. This event raised significant concerns about the effectiveness of the bail system in Victoria, prompting the Victorian Government to commission Justice Paul Coghlan to review existing laws and practices. The terms of reference did not specifically require an examination of the impact of bail laws on different cohorts, but the review team met with the Victorian Aboriginal Legal Service (VALS) and invited public submissions.
The Coghlan Review recommended changes to section 4 of the Bail Act 1977 to include more factors to be considered by all bail decision makers when applying the unacceptable risk, exceptional circumstances or good reason tests. Among these was the need to consider:
… any special vulnerability of the accused, including by reason of youth, being an Aboriginal person, ill health, cognitive impairment, intellectual disability or mental health
Additionally, decision-makers had to consider whether bail conditions could be imposed to reduce any risks. Despite these considerations, after the recommendations from the Coghlan Review were made into law, Victoria’s bail laws were widely regarded as among the most onerous in Australia.
Burra Lotjpa Dunguludja, the Victorian Aboriginal Justice Agreement Phase 4
When developing the fourth Aboriginal Justice Agreement (AJA4), the Aboriginal Justice Caucus (AJC) were extremely concerned about the disproportionate and harmful impacts of various laws on Aboriginal communities, particularly bail laws. The fourth Agreement included a commitment to ‘research the impact of the 2017-18 bail reforms on Aboriginal accused.’
The need for this research was driven by a lack of information and data around bail decisions, outcomes and reasons why bail was denied, as well as the original need outlined in Recommendation 89 to ensure that he entitlement to bail, as set out in legislation was being recognised in practice for Aboriginal people.
Crime Statistics Agency
A Bail Data Working Group, chaired by the Crime Statistics Agency (CSA), was established to undertake research to better understand the impact of the 2017-18 bail reforms. The CSA Research Agenda 2019-21 highlighted bail reform as one of its priority research areas under legislative change. However, examining the impacts on Aboriginal people was not part of this research agenda despite the department’s previous commitment under AJA4.
Characteristics and offending of women in prison in Victoria 2012-2018
Research was undertaken on the impact of bail reforms on women in prison in Victoria. It showed that the introduction of new ‘show cause’ offences under the Bail Act 1977 (Vic) in 2013 coincided with a rise in recorded bail breach offences in Victoria.
This research also noted the disproportionate impact on the number of Aboriginal women in Victorian prisons (between 2012 and 2018, the number of Aboriginal women entering prison more than tripled from 42 to 147), noting that further research was needed to understand the reasons for this increase and whether they differed from those affecting non-Aboriginal women.