Bail Review: Victoria Ponders How to Make Process Perfect

Thursday 2 February 2017 @ 10.20 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

As a result of the recent tragedy in Melbourne's Bourke Street, carried out by an alleged offender who was on bail at the time of the offence, and the public outrage it sparked, the Victorian Government, through Premier Andrews, has announced a review of Victoria’s bail system. 

The public outrage issued from the fact that the alleged offender, it was later revealed, had been on bail in relation to another alleged offence  committed six days before the attack on Bourke Street - on bail despite opposition from the Victoria Police prosecutors to the granting of bail. The bail had been granted by an "out of hours" volunteer honorary bail justice (similar to a justice of the peace).

The Victorian Government, through the Premier, has provided two key responses to the bail aspect of the public reaction over the tragedy. The first response was to announce that magistrates, rather than voluntary bail justices, will be "exclusively deployed" to hear bail applications where they relate to serious matters.  The second response by the Premier was to direct that the former Director of Public Prosecutions, Mr Paul Coghlan, conduct a  review of Victoria’s bail system.

How the Victorian Bail System Works

Victoria's bail justice system is unique - the bail justices are volunteers who hear after-hours bail applications. No specific qualifications are required to become a bail justice volunteer. All that is needed is to be over the age of 18, an Australian citizen, not insolvent and the completion of a Justice of the Peace course. Generally, the state's Justice Department requires that bail justices must agree to ". . . respect, observe and adhere to the highest levels of personal, social and community standards of integrity and professionalism".

Why the System is Both Criticised and Supported

A key criticism of the system is that of qualification and experience, given the apparent relative ease with which the job can be undertaken. In a recent report by the ABC, Ron Iddles, secretary of the state's Police Association, is reported as saying that:

 ". . . there were complex issues around the training for bail justices. Bail justices have limited training and I think it is time to review that and move forward, and have a magistrate make the final determination, . . . I think the environment has changed where we need 24/7 magistrates available to hear these sorts of applications."


On the the support side of the discussion, Rick Sarre Professor of Law, University of South Australia, writing for The Conversation, points out that looking for something to blame when bad things happen is not the best way to produce reform: 

"Faced with cries to do something when a crisis erupts, governments, understandably, become risk-averse. So, it was quite predictable that the Andrews government’s first target in this case was the bail justice system."

As Professor Sarre further points out, until the tragic Bourke Street events ". . . the uniquely Victorian initiative has drawn praise for more than two decades". The current bail justice system is said to be a key reason for Victoria's continuing low remand in custody rates with no evidence to indicate that Victoria has compromised public safety as a result.

Also to consider, there is firstly that ". . . police officers actually make 90% of bail decisions; magistrates or bail justices are only called in to adjudicate in the event of police denying bail" - and secondly, would a magistrate have reached the same bail conclusion as the bail justice did in relation to the Bourke Street offender?

Reaction to the Proposed Review

The Law Institute of Victoria (the LIV) in a press release has welcomed the Victorian government’s announcement of:

". . . a comprehensive review into the state’s bail system, to be conducted by former Supreme Court Justice Paul Coghlan, and to act immediately to establish a night court for magistrates to hear bail requests after hours."

The LIV, through its President Belinda Wilson, further approved of the Premier's statement that expense will not be a barrier to ensuring the outcomes of the review are fully implemented. She further indicated that the LIV would contribute to the proposed review, by setting up a special taskforce headed by expert legal practitioners volunteering their time and resources and using their experience from existing legal policy committees including criminal law, health law, human rights and technology law.

The outcomes of the review will be followed with much interest in all jurisdictions as bail tends to be a difficult to balance process, whose need everyone recognises, but whose structure most have a view about. Some significant numbers quoted by Professor Sarre are expressed as follows:

"There was yet another significant rise in [prison] numbers last year. In the September quarter of 2016, the average number of full-time prisoners was 38,998. Of these, 32% (12,332) were unsentenced – that is, denied bail."


Bail review or reform is always valuable but there is also the point that denying bail swells prison numbers and merely moves blockages and the resulting problems from one part of the justice system plumbing to another.

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