Few areas of Victorian law have moved as much in the past decade as bail. Major reforms in 2017 followed the Bourke Street tragedy. Further reforms in 2023 wound back parts of those changes after sustained advocacy on their disproportionate impact on women and Aboriginal Victorians. The framework now in place is the result of two reform waves pulling in opposite directions, and the debate is far from settled.
The Bail Act 1977 (Vic) is the foundation, but the Act has been amended so many times since 2017 that the version in force today bears only a partial resemblance to the one that existed before the Bourke Street reforms. Our newsroom has worked through the amendments, the second reading speeches and the leading case law to map where the law currently sits.
The basic framework
Bail is the conditional release of a person charged with an offence pending the determination of their case. Three things sit at the heart of any bail decision:
- Will the accused turn up to court?
- Will the accused commit further offences while on bail?
- Will the accused interfere with witnesses or evidence?
The Bail Act packages those concerns into the concept of “unacceptable risk”. A bail decision-maker — a court, a magistrate, a bail justice or a senior police officer in some circumstances — must decide whether the risk presented is unacceptable in light of available conditions.
The Act creates different tests depending on the offence charged and the accused’s circumstances. The three main tests, in increasing order of severity, are:
- Unacceptable risk. The default test. Bail is granted unless the prosecution can show an unacceptable risk that conditions cannot mitigate.
- Show compelling reason. A reverse-onus test. The accused must show a compelling reason why detention is not justified.
- Exceptional circumstances. The most stringent test. The accused must show exceptional circumstances justifying release.
Which test applies depends on the offence and on the accused’s existing bail or community-corrections status.
The 2017 Bourke Street reforms
The 2017 Bail Amendment (Stage One) Act and the subsequent Stage Two Act followed the Bourke Street tragedy in January 2017, in which a man on bail drove through a pedestrian mall in central Melbourne. The Coghlan Review of the Bail Act was commissioned in the aftermath, and its recommendations underpinned the legislation that followed.
The reforms expanded the categories of offences attracting reverse-onus bail tests. Offences that previously sat under “unacceptable risk” were moved to “show compelling reason”, and many offences that previously required compelling reason were moved to “exceptional circumstances”. The list of offences attracting the toughest test was significantly broadened.
The reforms also introduced new offences — committing an indictable offence while on bail, and contravention of certain conduct conditions — that themselves carried significant penalties.
The result, as critics had predicted, was a substantial increase in the remand population. Women, Aboriginal Victorians and people with mental health and substance-use issues were disproportionately affected. People charged with low-level offences — shoplifting to feed an addiction, breach of an intervention order in circumstances of family violence where the accused was the victim — were finding themselves trapped by reverse-onus tests they could not meet.
The Veronica Nelson coronial findings
The death of Veronica Nelson, an Aboriginal woman, in custody at the Dame Phyllis Frost Centre in 2020 became a focal point for criticism of the post-2017 framework. The coronial findings were damning, finding the Bail Act as it then stood was “racist” in its operation and called for fundamental reform.
The findings were widely reported and accepted at a political level. The 2023 reforms followed.
The 2023 reforms
The Bail Amendment Act 2023 wound back several aspects of the 2017 framework. The key changes included:
- Repeal of the offence of committing an indictable offence while on bail in many circumstances.
- Removal of the offence of breaching certain conduct conditions of bail in the same circumstances.
- Reweighting of the bail tests to make it harder to remand a person for low-level offending where there was no risk of serious physical harm to the community.
- Specific provisions requiring decision-makers to take account of the unique systemic and background factors affecting Aboriginal accused, drawing on the principles in Bugmy and related case law.
- Changes in the application of bail tests in family violence matters, recognising that the accused may sometimes be a primary victim.
The 2023 reforms did not abandon the architecture of the 2017 framework for serious offences. Reverse-onus tests for serious violent offending, organised crime, terrorism-related offences and the most serious sexual offences remained largely intact.
Whether the 2023 reforms have struck the right balance is contested. Victims-of-crime advocates have argued the wind-back has gone too far. Aboriginal community-controlled organisations and Smart Justice for Women have argued it has not gone far enough. The truth, as is often the case in this area, is that the reforms shifted the balance in some directions while leaving others substantially unchanged.
Exceptional circumstances, compelling reason, unacceptable risk
The three tests are easy to confuse, but the practical difference matters enormously. A short summary:
Exceptional circumstances applies to a defined list of the most serious offences — murder, certain terrorism offences, certain serious drug offences, and a small number of others. The accused must show that something about their case is genuinely exceptional. Bail is rarely granted on this test, and even when it is, conditions are typically extensive.
Show compelling reason applies to a broader list of serious offences. The accused must show a compelling reason why detention is not justified. The threshold is lower than exceptional circumstances but is still meaningful. The case law makes clear that “compelling” is a qualitative judgement and depends on the totality of circumstances.
Unacceptable risk applies to all other offences. The prosecution carries the onus. The court considers whether the risk of failure to appear, further offending or interference with witnesses or evidence is unacceptable having regard to the conditions available.
The interplay between the tests and the bail decision-maker matters. Police bail, magistrates’ court bail, supreme court bail review and the new specialist Bail and Remand Court all play different roles in the system.
The Bail and Remand Court
The Bail and Remand Court is a specialist part of the Magistrates’ Court of Victoria that operates extended hours, including overnight, to deal with bail applications and remand matters. It was established to bring more consistency and judicial oversight to bail decisions that previously fell to bail justices in after-hours periods.
The court has been credited with improving the quality of bail decision-making, particularly for Aboriginal accused and accused with mental health concerns. It has also been criticised for the volume of work it carries and the resourcing pressure on the magistrates and registrars who staff it. Reforms to the court continue to be debated.
The ongoing debate
Bail policy is one of the most genuinely contested areas of criminal justice. The competing arguments are real and serious.
On one side: bail decisions involve people who have not been convicted of any offence. The presumption of innocence applies. Remand causes significant harm — loss of employment, housing and family connection — even where charges are ultimately dropped or the accused is acquitted. The disproportionate impact on Aboriginal Victorians, women victim-survivors and people with mental illness has been well-documented.
On the other side: bail decisions involve people charged with criminal offences, sometimes serious ones. Community safety is a legitimate concern. Victims of crime have a justifiable interest in not seeing the person who allegedly harmed them released back into the community. The Bourke Street tragedy and other incidents involving accused on bail are not abstractions.
Our newsroom’s view is that this is one of those policy questions where good-faith people will disagree, the law will continue to be tested in particular cases, and the balance will continue to shift. What matters is that the debate is informed by evidence and conducted honestly.
If you are dealing with the bail system as an accused, a family member or a victim, support is available. Victoria Legal Aid is on 1300 792 387. The Victims of Crime Helpline is on 1800 819 817. For family violence support, Safe Steps is on 1800 015 188 and 1800RESPECT is on 1800 737 732. The Victorian Aboriginal Legal Service operates a 24-hour line on 1800 064 865. For mental health support, Lifeline is on 13 11 14 and Beyond Blue is on 1300 22 4636. 13YARN is on 13 92 76.
