The Victorian Bar and Criminal Bar Association of Victoria (CBA) are deeply concerned that the proposed changes to bail laws may adversely impact young people in a manner not to the long-term benefit of the community.

Bail is an integral component of a fair and just criminal law system. The denial of bail does in effect amount to the implementation of punishment on an individual prior to any finding of guilt. There are of course circumstances in which the risk of serious reoffending will require incarceration prior to trial. This should, however, not be the default position, especially when dealing with young people. It should be a rare situation that requires a child to be remanded in custody to manage the risk of reoffending.

Reform to bail law arising from the recommendations of his Honour Coroner McGregor from the inquest into the death of Ms Veronica Nelson were evidence based and thorough. Many of those recommendations – though not all – were implemented by the Government and came into effect in the last 12 months.

The newly proposed laws seek to roll back many integral features of those reforms. We are unaware of any evidence to suggest that doing so will address concerns for community safety in an effective and sustained way. These proposals will, however, make it more likely that young people are kept in custodial environments in which they are vulnerable to malign influence and physical risk. Any bail consideration involving a young offender must weigh the risk that incarceration can diminish the prospects of rehabilitation. This risk increases with the length of any delay to the matters being finalised in the courts.

Community safety in the medium and long-term is best achieved through the diversion of young offenders away from the justice system through the proper funding of education, treatment and support services for all children interacting with the criminal justice system. 

This policy position is enshrined in the principles of the Children, Youth and Families Act 2005, and our bail laws should reflect this goal yet retain sufficient discretion for the courts to manage those rare cases where the risk to the community, and potentially the young person, means pre-trial incarceration is unavoidable. 

In such circumstances the court system should operate to ensure that the period of time that elapses until the finalisation of such matters, either by sentence or acquittal, is minimised to the extent possible.

The Victorian Bar and CBA urges all members of Parliament to consider criminal justice law reform based on evidence and focused on effectiveness. Whilst the CBA has not yet been provided with the final bill to be put before Parliament, the youth bail law reforms proposed today raise concerns that neither of these matters have been given sufficient consideration.

See our full media release here.