Bail – A complex problem
Bail laws in Victoria have recently been the subject of widespread media coverage, with alarming stories of individuals committing crimes whilst on bail for previous offences.
In the following article we explain why it appears that bail decision-makers are making very lenient decisions about bail, which can then lead to more prevalent offending.
Recent Amendments to the Bail Act
The media stories have come shortly after amendments to the Bail Act 1977 (the Act) came into force in March of 2024 (the Amendments). The Act is the principal piece of legislation informing bail decision-makers of what they must take into account when making decisions in relation to bail applications in Victoria.
The Amendments were made following the death of indigenous woman Veronica Nelson (Veronica) in January 2020 whilst she was being held on remand. She had been refused bail because she was unable to establish “exceptional circumstances” for being granted bail.
The ‘exceptional circumstances’ test requires an accused person to demonstrate that there are exceptional circumstances that justify the granting of bail. It is the most difficult test for those seeking to be released on bail and applies to ‘Schedule 1’ offences, which include serious offences like terrorism and murder.
The Inquest into Veronica’s death by the Coroners Court of Victoria published its’ report in January of 2023 and made several recommendations, including changes to the Bail Act with respect to when the ‘exceptional circumstances’ test applies.
One of the most significant changes made by the Amendments was to remove what is known as the ‘double uplift’ effect. This refers to the application of the “exceptional circumstances” test when a ‘Schedule 2’ offence – which are typically less serious offences – is committed whilst the accused was on bail, subject to a summons, at large, awaiting trial or whilst on a Community Corrections Order.
This higher test was used when Veronica applied for bail in December 2019 charged with the theft of fragrances from a chemist, whilst also on bail for an unrelated offence.
Conclusion
Critics of the recent amendments, including the removal of the ‘double uplift’ effect, have argued that it has become too easy to be granted bail, particularly for repeat offenders.
On the other hand, other voices support the changes, particularly following the findings of the inquest.
What is clear is that Bail laws in Victoria remain complex and challenging to navigate. Further amendments are likely to spark heated discussion and debate.
If you would like our assistance in any relation to an application for bail or in any criminal matter, please telephone our litigation team on 9870 9870 to discuss.
