06th March 2024 11:17am
Victorian Legislative Council, Melbourne

David ETTERSHANK (Western Metropolitan) (11:16): 

I rise to make a brief contribution on the Bail Amendment (Indictable Offences Whilst on Bail) Bill 2024 introduced by Mr Mulholland. I will say from the outset that Legalise Cannabis Victoria (LCV) will not be supporting this bill.

The focus of Victoria’s bail and remand system should be on the unacceptable risk that an offender may pose to the community. All too often we are seeing the system overcriminalise vulnerable groups, including First Nations Victorians, children and young people, and set them up for a lifetime of unnecessary contact with the criminal justice system.

LCV supported the Bail Amendment Bill 2023, recognising that the existing system of bail was not working as it should. The Bail Amendment Act 2023, due to commence soon, removes the higher test to obtain bail for a person who commits an indictable offence while on bail.

The opposition are now seeking to reinstate section 30B, stating that its removal will threaten public safety, invoking all manner of frightening scenarios, such as aggravated burglaries committed by the most hardened, violent recidivist offenders, and I will come back to this question shortly.

But we already know that a presumption against bail is retained for serious offenders and that remand is available for serious offences. Indeed, as the Attorney-General noted recently, the offence of committing an indictable offence while on bail attracts a maximum penalty of three months.

It is not really going to deter a hardened recidivist from committing aggravated burglary, because they might risk an additional three months on top of the maximum 25 years they could face for that offence. Three months in remand for a young person, however, will have material and disastrous consequences for the rest of their lives.

I was privileged recently to meet with members of the youth crime prevention and early intervention project, a partnership between Westjustice, Victoria Police and Victoria Legal Aid currently operating in the cities of Brimbank and Wyndham.

It is a remarkable program, and it is seeing some incredible results in diverting young people away from the criminal justice system and into services and programs that support them to get jobs and to lead productive lives. They have seen many young people overcriminalised as a result of bail laws, particularly the application of section 30B, and they cited a common scenario.

A young person might be charged for, let us say, possession of drugs. They are out on bail but they have to wait 12 to 18 months for their day in court. This is a very common scenario. Along that road, in that 12- to 18-month period, they might steal a bag of chips from a shop or they might get nicked doing some graffiti – minor offences but technically indictable offences.

Now that young person has committed an indictable offence whilst on bail for another indictable offence, and they will get remanded. Best case, a young person will often be remanded over a weekend or at least overnight while awaiting court, which starts that process of normalising custody and sets that young person up on an undesirable trajectory through the criminal justice system. It is a vicious cycle, and it is one that we see all the time – all too often.

Let us look at Mr Mulholland’s proposal. In his second-reading speech he stated that section 30B:

… reflects a simple principle: if you abuse the privilege of bail by committing further offences, you should face a tougher test to get bail again.

This suggests that bail should work as a deterrent. Hardened recidivists aside, it may work as a deterrent for mature adults but certainly the same cannot be said for children and young people. Opposition members may baulk at the science, but brain development research in adolescents shows that they cannot attach consequences or project into the future in the same way that an adult can.

It is the same reason why incarcerating young people has never really worked as a deterrent to offending. Section 30B completely undermines the principle that jail should be an absolute last resort for children.

Mr Mulholland also cited a 33 per cent increase in residential aggravated burglaries over the last 12 months, and we just heard Ms Bath summon up this vista, this image, of 25,000 balaclava-clad criminals committing aggravated burglaries across the state. I hate to interrupt such splendid visions from the opposition, but the legal reality – the truth of the matter – is that this offence, the offence of aggravated burglary, is a schedule 2 offence. There is a presumption against bail, and offenders need to show compelling reasons why they would get bail. Beyond this, the court will also consider whether the offender poses an unacceptable risk to the community, including whether they pose an unacceptable risk of offending while on bail.

So the idea that the removal of section 30B is a sort of get-out-of-jail-free card for serious offenders is laughable. In the case of aggravated burglaries, it is just a furphy. You are beating a drum that scares the community but is not tethered in the law or truth.

The Bail Amendment Bill 2023 dealt with two conflicting principles in our justice system: the presumption of innocence and the need to ensure community safety and the protection of Victorians. We believe that bill provided a much-improved balance for adults between those two principles and still provided protection for the community in serious cases. I reiterate that Legalise Cannabis Victoria will not be supporting this unnecessary and regressive amendment.


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