More than six years after the Bourke Street attack prompted Victoria to tighten bail laws in ways that sent remand numbers soaring, the state’s parliament passed a significant set of amendments in 2023 that softened those settings — particularly for women and Aboriginal and Torres Strait Islander accused people. The changes did not reverse the post-2017 architecture entirely, but they introduced new tests, new obligations on decision-makers, and a renewed focus on remand as a last resort.
Understanding what shifted — and why — matters for anyone who follows the courts, works in the justice system, or has a family member caught up in it.
The problem the 2023 reforms were designed to fix #
The Bail Amendment Act 2023 (Vic) emerged from a long accumulation of evidence that Victoria’s post-Bourke Street bail laws were producing outcomes their architects had not fully anticipated. The original 2017 and 2018 amendments — responding to the January 2017 attack in which six people were killed — introduced stricter presumptions against bail for a wider range of offences and created a new “show compelling reason” test that placed the burden squarely on accused people to justify their release.
The intent was to keep people with a demonstrated pattern of serious violence off the streets while matters were before the courts. What the data showed, however, was a dramatic and uneven expansion in the number of people held on remand — people who had not been convicted of anything — with Aboriginal and Torres Strait Islander people and women bearing a disproportionate share of that increase.
By the early 2020s, Victoria’s remand population had roughly doubled compared with pre-2017 levels. Corrections Victoria data and reporting by the Victorian Ombudsman and the Justice Reform Initiative identified that a significant proportion of people on remand were ultimately not sentenced to imprisonment after their matter was resolved — meaning they had spent weeks or months in custody before being found not guilty, having charges dropped, or receiving a non-custodial sentence.
The new “unacceptable risk” framework and what it means #
At the centre of the 2023 amendments is a recalibration of the risk-assessment framework that bail decision-makers — police bail justices, magistrates and judges — must apply. The reforms reinforced that remand is to be used only where release would pose an unacceptable risk: that the accused would fail to appear, commit an offence, endanger the community, or interfere with witnesses or evidence.
Critically, the legislation made explicit that decision-makers must consider the availability and appropriateness of bail conditions as an alternative to remand. Where a condition — such as a curfew, a surety, or a reporting requirement — could adequately address the identified risk, remand should not follow. This was not new in principle, but advocates argued it had been applied inconsistently, and the amendments embedded it more clearly in the statutory text.
The reforms also strengthened the requirement to consider “relevant personal circumstances” before refusing bail, a provision with direct consequences for the two cohorts the parliament explicitly named as priorities.
What changed specifically for Aboriginal and Torres Strait Islander accused #
The 2023 amendments introduced a specific obligation — now sitting in the Bail Act 1977 (Vic) — requiring bail authorities to give particular attention to the circumstances of Aboriginal and Torres Strait Islander accused people when assessing bail. Decision-makers must take into account the systemic and background factors that may have contributed to the person appearing before them and the cultural obligations or community ties that might be relevant to both risk and support.
This drew on the long-standing principle articulated in R v Bugmy (2013) in the High Court and applied in Victorian sentencing practice, but it translated that principle into the bail context where it had been less consistently applied. The intent, as the government stated during the parliamentary debate, was to reduce the over-representation of Aboriginal and Torres Strait Islander people in remand — a group that, by 2022, made up roughly 11 per cent of Victoria’s remand population despite representing less than one per cent of the general population.
The amendments also encouraged greater engagement with Aboriginal community-controlled organisations where accommodation, support, or supervision could be facilitated as a bail condition, offering bail authorities a practical alternative to custody in circumstances where the absence of stable housing had previously been treated as a reason to refuse bail.
What changed for women and primary carers #
For women — and, more broadly, for people who are primary carers of children or dependants — the 2023 reforms introduced an explicit requirement that bail authorities consider the impact of remand on any children or other dependants in the accused person’s care. This addressed a well-documented gap: because the standard bail framework treated the accused as an individual in isolation, the collateral consequences of remanding a sole parent — often placing children into emergency out-of-home care — had not been a formal consideration.
Advocates including the Victorian Women’s Legal Service and the Federation of Community Legal Centres had argued for years that this omission meant women, who are more likely than men to be primary carers, were effectively penalised more severely than equivalently placed male accused simply by virtue of their caring role. The 2023 changes do not create an entitlement to bail, but they require the question of dependants to be addressed as part of the assessment, not ignored.
The reforms also introduced greater flexibility around bail support programs specifically designed for women, recognising that many women entering the justice system do so in the context of family violence — sometimes as both victim and accused — and that generic bail conditions could expose them to further harm.
What remained unchanged: the serious-offending presumptions #
It is important to be clear about what the 2023 reforms did not do. The presumptions against bail for people charged with serious offences — including murder, terrorism-related charges, and certain aggravated offences — remain in place. People charged in those categories must still show compelling reason why their detention is not justified, and the threshold for doing so remains high.
The government was explicit during debate that the reforms were not a general softening of bail law and were not intended to revisit the policy response to serious, planned violence. Critics from the opposition and some victim advocacy groups argued the changes nonetheless sent an unhelpful signal; supporters countered that remanding unconvicted people who do not pose a genuine risk serves neither justice nor public safety.
What the remand data has shown since #
It is too early for a definitive verdict on the reforms’ impact. Victoria’s remand population remains elevated by historical standards. However, Corrections Victoria’s more recent figures suggest some stabilisation in remand growth, and justice sector researchers have noted an increase in the use of bail support conditions in the Magistrates’ Court in the period following the amendments taking effect.
The Parliament’s scrutiny committees and the Sentencing Advisory Council have flagged that more granular data — broken down by cohort, offence type and court outcome — will be needed before the impact on Aboriginal and Torres Strait Islander remand rates and on women’s remand can be properly assessed. That monitoring work is ongoing.
Why this matters beyond the courtroom #
Bail law tends to attract public attention only when something goes wrong — when a person on bail commits a serious offence. What gets less attention is the quieter harm of over-remand: employment lost, housing forfeited, children separated from parents, and the well-documented criminalising effect that a period in custody, however brief, can have on a person who was ultimately not convicted of anything. The 2023 amendments represent an attempt to hold both concerns in view at once — to keep the genuine risk-management function of remand while reducing its use as a default.
Whether the balance has been struck correctly will only become clear with time and data. What is clear is that the legal landscape governing how courts and police bail justices make these decisions has meaningfully shifted, and anyone working in or reporting on Victoria’s justice system needs to understand what is now required of decision-makers.
If you or someone you know needs support, the following services are available 24 hours a day, seven days a week.
- Crime Stoppers: 1800 333 000
- Lifeline (crisis support and suicide prevention): 13 11 14
- 13YARN (crisis support for Aboriginal and Torres Strait Islander peoples): 13 92 76
- 1800RESPECT (domestic, family and sexual violence): 1800 737 732
- Safe Steps (family violence response, Victoria): 1800 015 188
- Sexual Assault Crisis Line: 1800 806 292
- Beyond Blue: 1300 22 4636
