APPLICATION TO VARY BAIL CONDITIONS
The Victorian justice system since the 2016 legal changes has made vast improvement in the bail application requirements and variations. The increasing number of persons detained in prisons in Victoria is a matter of concern. This has been due to the high number of people being denied bail and forced into remanded custody
In Victoria, increase in the number of people being denied bail and held on remand has been accompanied by the 2017/18 significant reforms to bail laws that prioritizes community protection.
Bail hearings involve one or two steps. For less serious offences (not contained in Schedule 1 or 2 of the Bail Act), a one-step process applies; the prosecution must satisfy the decision-maker that the person applying for bail presents an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail, interfering with a witness or obstructing the course of justice, or not attending court for the hearing of their case.
These changes have had effects on the bail variations and has limited them to Refusal of bail except in exceptional circumstances and Refusal of bail in the case of unacceptable risk
The key reform sectors
Exceptional circumstances-
BAIL ACT 1977 - SECT 30A
Offence to contravene certain conduct conditions S. 30A(1) amended by No. 1/2016 s. 16(1).
(1) Subject to subsections (2) and (3), an accused on bail in respect of whom any conduct condition is imposed must not, without reasonable excuse, contravene any conduct condition imposed on him or her. Penalty: 30 penalty units or 3 months imprisonment. The Penalty: Level 7 imprisonment (2 years maximum)
The Bail act 2016 SECT 4(2).(aa) The bail decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.
(2) The new reforms state in the case of a person charged with an offence under section 4B (1) or 21W of the Terrorism (Community Protection) Act 2003 unless the court is satisfied that exceptional circumstances exist which justify the grant of bail; Descended/identifies or accepted as Aborigine or Torres Strait Island
Unacceptable community risk factors-
The Bail Act 2016 includes insertion of denial of bail if the accused might become a risk threat to the community. Article "(ba) whether the accused has expressed publicly support for; (i) a terrorist act or a terrorist organization; (ii) the provision of resources to a terrorist organization;".
The earlier bail granting did not consider community protection, making it not loom large in the development of the Bail Act or the associated parliamentary debates. The Bail Act however put community protection in the forefront of the debates and the dangers presented by some bail applicants especially for offences involving weapons.
Considerations for varying bail
Sect 4 Bail Act 1977 A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
"(ab) with a serious offence and the accused, as an adult, has within the preceding 5 years been convicted or found guilty of an offence against section 30(1); or".
The above considerations therefore include if the accused being granted bail will not be a threat to the community, they have justified to the jurisdiction that granting bail will outweigh the custody or rehab options.
Source:
b. Bail Act 1977
c. Bail Act 2016
