Victoria’s bail framework has been rewritten, recalibrated and contested more than almost any other area of criminal law in the past decade. The 2023 amendments to the Bail Act 1977 (Vic) represent the most significant softening of those laws since the post-Bourke-Street crackdowns of 2017 and 2018 — and they were explicitly designed with two groups in mind: women, and Aboriginal and Torres Strait Islander accused.
Understanding what changed requires a brief history of how we got here, what the new tests actually say, and what the evidence tells us about whether the reforms are doing what Parliament intended.
A decade of tightening: the post-Bourke-Street era #
The Bourke Street tragedy of January 2017, in which six people were killed when a car was deliberately driven into pedestrians in Melbourne’s CBD, triggered a political and legislative response that fundamentally reshaped Victoria’s approach to bail. Inquiries found the alleged offender had been on bail at the time of the incident. Within months, the Andrews government moved to tighten bail laws significantly.
The Bail Amendment (Stage 1) Act 2017 and its Stage 2 successor introduced or expanded so-called “show-cause” and “exceptional circumstances” tests for a broader range of offences. Under a show-cause test, an accused person must demonstrate why their continued detention is not justified — reversing the traditional presumption in favour of liberty. Under an exceptional circumstances test, the bar is higher still: the accused must point to circumstances that are genuinely out of the ordinary before bail can be granted at all.
The cumulative effect was a sharp rise in the remand population — people held in custody who had not been found guilty of any offence. By the early 2020s, remand detainees accounted for more than 40 per cent of Victoria’s total prison population, according to data published by the Department of Justice and Community Safety. That figure drew sustained criticism from legal aid services, community legal centres, and Aboriginal justice bodies, who argued the laws were sweeping up people who posed little genuine risk to the community.
Who was being caught by the tougher tests #
The data told a stark story about disproportionate impact. Women in remand — particularly those facing relatively minor offending — had grown as a share of the custodial population. Many were primary carers of children. Many had experienced family violence themselves, and in a significant number of cases, charges arose from conduct connected to that violence: defensive acts, survival offending, or offending driven by coercive control.
For Aboriginal and Torres Strait Islander accused, the picture was even more pronounced. Victorian Aboriginal Legal Service (VALS) and other advocacy bodies had for years documented that Aboriginal people were being remanded at rates vastly disproportionate to their share of the general population — a pattern consistent with national data showing Aboriginal Australians are among the most over-represented groups in custody anywhere in the world.
The connection between bail refusal and downstream disadvantage was also becoming clearer in the research literature: people remanded in custody are more likely to lose housing, employment, and family connections, making reoffending more likely even where the original charges are ultimately withdrawn or result in a non-custodial sentence.
What the 2023 amendments actually changed #
The Bail Amendment Act 2023 (Vic), which passed Parliament in September 2023 and took effect progressively, made several substantive changes to the framework.
The most significant was the introduction of new mandatory considerations that bail decision-makers — police, bail justices, and courts — must take into account. For the first time, decision-makers are required to consider:
- whether the accused is an Aboriginal person, and whether there are any relevant cultural obligations, connections to country, or the impact of systemic disadvantage;
- whether the accused is a victim or alleged victim of family violence, and whether the offending is connected to that experience;
- whether the accused is a primary carer of a child or another dependent person, and the likely impact on that dependent if bail is refused;
- the availability of culturally appropriate bail support programs and whether participation in such a program could address any unacceptable risk.
These considerations do not automatically entitle an accused to bail. Where a show-cause or exceptional circumstances test still applies, the accused must still satisfy that threshold. But the mandatory considerations mean decision-makers can no longer simply apply the test in a vacuum — they must engage, on the record, with these contextual factors.
The amendments also modified the “unacceptable risk” test — the default test that applies to most offences — to give greater explicit weight to the personal circumstances of the accused, not just the nature of the alleged offending. Proportionality language was inserted into the objects of the Act, requiring decision-makers to balance the right to liberty against community safety rather than treating community safety as automatically paramount.
The legislative intent: Parliament’s stated purpose #
The second-reading speech delivered by then-Attorney-General Jaclyn Symes was notably direct about the motivations behind the reforms. The government acknowledged that the post-2017 amendments, while responding to genuine public safety concerns, had produced unintended consequences that fell disproportionately on women and Aboriginal people. The reforms were framed not as a weakening of public safety protections, but as a recalibration to ensure bail decisions were genuinely individualised rather than reflexively punitive.
The speech also pointed to the recommendations of the Victorian Law Reform Commission’s 2021 review of the bail system, which found that the expansion of show-cause and exceptional circumstances tests had gone further than was necessary to address the specific risks that prompted the post-Bourke-Street response. The Commission recommended a more targeted approach, retaining the higher-threshold tests for the most serious offences while restoring a presumption in favour of liberty for lower-risk accused.
Parliament also had before it data from the Sentencing Advisory Council showing that a significant proportion of people who were remanded under the tougher tests ultimately received non-custodial sentences — suggesting they were being held in custody pre-trial for offences that, on sentencing, a court did not consider to warrant imprisonment.
What the remand data shows since commencement #
It is still relatively early to draw firm conclusions about the reforms’ impact on the remand population. The Department of Justice and Community Safety publishes quarterly prison statistics, and the most recent data available to VCN at the time of publication showed a modest but measurable decline in the proportion of unsentenced prisoners as a share of the total custodial population since the amendments commenced.
Aboriginal Legal Service providers and VALS have reported anecdotally that bail justices and Magistrates’ Court decision-makers are engaging more consistently with the mandatory considerations, though advocates note that the quality of that engagement varies significantly between decision-makers and that training remains uneven. A formal evaluation of the amendments by the Sentencing Advisory Council is understood to be under way, though no public findings have been released at the time of writing.
Critics of the reforms — including some victim advocacy groups and elements of Victoria Police — have argued that the softening of the framework creates risk in individual cases, and that the mandatory considerations could be used to argue for bail in circumstances where genuine danger to victims exists. Supporters counter that existing provisions protecting family violence victims — including the requirement to consider the safety of any person in the bail calculus — remain fully operative and were not diluted by the 2023 amendments.
What remains unchanged #
It is worth being precise about what the 2023 reforms did not do. The highest-threshold exceptional circumstances test remains in place for the most serious offences, including murder, treason, and certain terrorism-related charges. Show-cause tests also remain for a range of serious offences. The reforms did not create a right to bail; they created better procedural machinery for individual circumstances to be heard and weighed.
Bail conditions — including curfews, reporting requirements, and exclusion zones — remain available to courts and bail justices where needed to manage risk. The power to remand has not been removed; it has been contextualised.
What to watch #
The Sentencing Advisory Council evaluation, when released, will provide the most rigorous test of whether the legislative intent has translated into measurable change in remand rates, particularly for Aboriginal women. Legal practitioners working in this space have told VCN that the real test will be whether bail support infrastructure — particularly culturally appropriate programs in regional Victoria — is adequately funded to make the new framework operational rather than aspirational. Legislation that nominates program participation as a bail condition can only function if those programs exist and have capacity.
VCN will continue to report on court data and any formal evaluation findings as they become available.
Support services: If you or someone you know needs help, the following services are available 24 hours a day, seven days a week: Lifeline 13 11 14 | 13YARN (First Nations crisis support) 13 92 76 | 1800RESPECT 1800 737 732 | Safe Steps (family violence) 1800 015 188 | Beyond Blue 1300 22 4636 | Crime Stoppers 1800 333 000.
