Bail: what will change?

Changes to the Bail Act will mean it is even more important to have a lawyer conduct your bail application. If you know somebody who needs to apply for bail, contact us now to begin work on their Application.

After the tragedy in Bourke Street in January, community concern about Bail laws soared.This was a misplaced concern, as it was clear that access to adequate mental health services was really the pressing issue in that case.

Nonetheless, the Government called for an immediate review into Victoria’s Bail laws, and the resulting recommendations may well lead to some significant restrictions on when a person is likely to be granted bail.

The honourable Paul Coghlan QC undertook a review of The Bail Act 1977 and the first Amending Bill has now been passed and is awaiting Royal Assent.

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    The main changes are as follows:

    1. The term ‘show cause’ is being replaced with ‘show compelling reason’. The Explanatory Memorandum explains that the change is being made to ensure that ‘proper weight is given to the onus placed on accused persons’ in these scenarios. This suggests that the Parliament intends that the new wording will be more onerous to overcome for an Applicant for Bail.

    2. Two new Schedules will be inserted into the Act. Schedule 1 will list the offences for which an Applicant must show ‘Exceptional Circumstances’. Schedule 2 will list the offences for which an Applicant must ‘show compelling reason why his or her detention in custody is not justified’. 

    3. The number of offences to which the ‘reverse onus’ tests apply will increase in both categories.

    Schedule 1- exceptional circumstances

    A number of new offences have been added which require an Applicant for Bail to show exceptional circumstances before they can be granted bail.

    If you are charged with a “show compelling reason” offence while on bail for one of those offences (or a schedule 1 offence) , on a Community Corrections Order imposed for such an offence, subject to a summons for such an offence or released on Parole for a Schedule 1 or 2 offence, you will now be required to show exceptional circumstances before you are granted bail.

    Aggravated Home Invasion and Aggravated Carjacking are now in the exceptional circumstances category.

    Schedule 2 - show compelling reason

    In Schedule 2, an Applicant is placed in a ‘show compelling reason’ category if they are alleged to have committed any indictable offence (for example Theft) whilst undergoing a Community Corrections Order. 

    A number of new offences have been included in this category, including:

    Rape and a number of other sexual offences;

    Threat to Kill ‘that is also a family violence offence’;

    Intentionally causing serious injury;

    Culpable driving causing death;

    Dangerous driving causing death or serious injury;

    Dangerous driving whilst pursued by Police;
    Persistent Contravention of Intervention orders or Personal Safety Notices: In the old Act, if you were charged under Section 125A of the Family Violence Protection Act 2008 (persistent contravention) you would not be in a reverse onus position unless the prosecution could satisfy the Court that you had committed a similar offence, or used or threatened violence against the complainant, within the preceding ten years. Now if you are charged under this section you are automatically required to show compelling reason why you should be granted bail.

    The number of Commonwealth offences for which the ‘show compelling reason’ test will apply has also been expanded.

    The changes to the Bail Act will almost definitely result in more people being refused bail, adding to the already significant problem of overcrowding of our prisons, clogged Courts and the failure of Corrections Victoria to bring people to Court in accordance with Court orders.

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