The latest edition of the Bail Bench Book, published by the Judicial College of Victoria, shows that Labor’s changes to bail laws do nothing to protect Victorians. The laws claimed to be the toughest in Australia, in fact, guide judges to do almost the same job as before, but adopting a different context i.e. put community safety first and then conclude that it is not in the longer term community safety that young offender be refused bail.
The Bail Bench Book is the official guidance provided to judges and magistrates on how to apply Victoria’s bail laws in practice.
The updated edition makes clear that bail decision-making remains largely unchanged – despite Premier Jacinta Allan promoting two changes as major reforms:
- Remand for youth offenders
The Premier claimed in a press release released in March, that removing the provision that remand is a last resort for minors would lead to greater community safety:
“Right now, under section 3B of the Bail Act, an accused youth offender is remanded (detained in custody) only as a ‘last resort’. The Tough Bail Laws will remove the principle of remand as last resort.”
However, the Bail Bench Book update states that courts must still apply the “minimum intervention required” when dealing with a child, and that Labor’s legislation “does not alter how bail decision makers are to approach the necessary intervention required to be imposed.”
The Bench Book also makes clear:
- “…a child, especially an Aboriginal child, should be released on bail, with conditions, wherever possible.”
- “Both before and after the amendment a decision maker was required to impose the minimum intervention required in the circumstances.”
- “(Labor’s amendment) does not change the fact that decision makers must consider what constitutes the minimum intervention necessary.”
- Community safety as an overarching principle
In the same release, the Premier claimed her government’s changes mean community safety now comes first in all bail decisions:
“Under the laws, community safety will become the overarching principle for bail decision-making for offenders of all ages. It will be a clear and unambiguous signal: community safety comes first in all considerations.”
But the Bail Bench Book directly contradicts this, advising:
- “…while community safety must be maximised ‘to the greatest extent possible’, this is not an absolute maximum. It must necessarily allow room for consideration of the other fundamental principles.”
- “This means that in many bail applications there will be significant competing and conflicting factors a decision maker must take into account and balance.”
- “The 2025 amendments… do not affect the operation of the exceptional circumstances test. While amendments to section 1B mean more attention must now be placed squarely on the overarching importance of community safety, this does not change the exercise of determining if exceptional circumstances exist.”
Leader of the Opposition Brad Battin said Labor had once again shown it does not put the safety of Victorians first.
“Victorians have had enough. We need laws to protect the community, not loopholes that keep violent offenders on the street.”
“Labor weakened Victoria’s bail laws, and their so-called reforms are a joke. Only the Liberals and Nationals’ ‘Break Bail, Face Jail’ plan will deliver real consequences for offenders and restore community safety.”
Shadow Attorney-General Michael O’Brien said that the Bail Bench Book proved that Labor’s bail laws are still weak and fail to protect the community.
“The judges’ manual blows the whistle on the Premier’s spin. The truth is that Labor’s bail laws are as weak as ever, putting Victorians at risk.
“The Premier’s spin does not match up with reality. Her changes do not deliver what she claims.
“Victorian judges are still being instructed that youth offenders should get bail wherever possible. Judges are still being told that community safety is just one of a number of ‘competing and conflicting factors’ when deciding bail.
“Now that judges are telling the Premier her bail laws will change nothing, it is time to adopt the Liberals and Nationals’ ‘Break Bail, Face Jail’ policies.
“’Break Bail, Face Jail’ will ensure real consequences for offenders who commit crimes while on bail.
“Labor deliberately weakened Victoria’s bail laws then failed to fix them. Only the Liberals and Nationals have a plan to keep Victorians safe.”
Excerpt from the Judge’s Guide
While community safety must be maximised to the ‘greatest extent possible’, this is not an absolute maximum. It must necessarily allow room for consideration of the other fundamental principles in s 1B and other important considerations in the BA, particularly those found in ss 3A and 3B. This means that in many bail applications there will be significant competing and conflicting factors a decision maker must take into account and balance, and for which there is not necessarily only one answer.
In considering how the amendments should be properly interpreted, and specifically how the changes to ss 1B and 3B interact with each other, and with the exceptional circumstances and unacceptable risk tests, the Supreme Court found it relevant to also consider the factors specified in ss 3B(1)(b)-(j) and the fact that children are afforded a special status under the BA. The Court concluded that where a bail application is made for a child, the decision maker should understand and approach the overarching importance of maximising community safety through the lens of s 3B, which requires them to balance Parliament’s intention in enacting the different provisions.
For reference, s 3B says as follows:
BAIL ACT 1977 – SECT 3B
Determination in relation to a child
- 3B(1)amended by No. 26/2017 s. 14(2), substituted by No. 28/2023 s. 35.
(1) In making a determination under this Act in relation to a child, a bail decision maker must take into account (in addition to any other requirements of this Act) the following issues—
(a) the child’s age, maturity and stage of development at the time of the alleged offence;
(b) the need to impose on the child the minimum intervention required in the circumstances;
- 3B(1)(c)amended by No. 32/2024 s. 780(1).
(c) the presumption that a child who is 12 or 13 years of age cannot commit an offence;
As a general proposition, the Court found that the interpretation which best harmonises that intent is recognising that the overarching importance of maximising community safety includes acknowledging that placing a child in custody may increase their likelihood of reoffending and so has broader implications for the community.
In this way, consideration of community safety has two aspects. First, in the short term, removing the child from the community removes the opportunity to reoffend, but second, in the long term, incarcerating children increases their likelihood of reoffending. Balancing and weighing these competing aspects of community safety depends on the circumstances and only where no less invasive intervention is available and there is an unacceptable risk is remanding a child in custody required by the BA.
This accords with the non-controversial proposition that courts can ‘take a long-term approach in the attempt to maximise community safety’ by assisting an applicant to manage core drivers of their criminal behaviour, such as drug addiction, through treatment, recovery, and rehabilitation. In this way there is, in the longer term, a better prospect of maximising community safety to the greatest extent possible. While refusing bail may protect the community for the period of time the accused remains in custody, ‘that would be a very short-sighted approach to the problem’ because it does not offer the same long-term recovery and rehabilitation prospects of a successful stint in a residential rehabilitation facility. Of course there is a risk this will not succeed, or worse, but it can be a risk worth taking in the name of community safety via recovery and rehabilitation in the longer run.
This article uses a Liberal Party media release with insights and inputs by Dinesh Malhotra.