This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Key changes to bail in 2018

Information about the changes to bail that will be applied in 2 stages from 21 May 2018.

There were 2 major stages of reform to the Victorian Bail Act 1977 during 2018. The first changes commenced on 21 May 2018, the second apply from 1 July 2018. Changes that make it more difficult for people to get bail if they have a terrorism record or if a court considers they pose a terrorism risk commenced on 1 October 2018.

Note: Information on this page about the stage one and 2 reforms does not incorporate the changes that affect terrorism related offences.

The Bail only in exceptional circumstances and Show compelling reason pages have been updated to incorporate this change.

The stage 1 reforms apply to bail applications or appeals that commenced after 20 May 2018, regardless of when the alleged offence happened.

The stage 2 reforms apply to bail applications or appeals that are commenced after 30 June 2018, regardless of when the offence is alleged to have happened.

Stage 1 reforms

Purpose and guiding principles

The changes make it clear that the purpose of the Act is to provide a legal framework for making decisions about whether a person should be granted bail.

The guiding principles state that parliament recognises the importance of:

  • maximising community safety and particularly victims as far as possible
  • recognising the presumption of innocence and right to liberty
  • promoting fairness and transparency in bail decisions
  • promoting public understanding of bail practices and procedures.

See s. 1A, 1B—Bail Act 1977 (Vic).

Simplifying and clarifying bail presumptions and tests

An attempt has been made to simplify the Act by creating 2 Schedules, which list the offences where bail will only be granted if exceptional circumstances exist (schedule 1) or where a compelling reason (formerly 'show cause') can be shown to justify why bail should be granted. Schedule 1 offences are more serious and have a higher threshold. The list of offences in both categories has been expanded.

See ss. 4(2) and (4A), Schedules 1 and 2—Bail Act 1977 (Vic).

Offences requiring exceptional circumstances for bail

The new offences that require exceptional circumstances before bail can be granted include:

  • a schedule 2 offence committed while a person is on bail for a schedule 1 or 2 offence
  • aggravated home invasion
  • aggravated car jacking
  • additional drug offences under the Commonwealth Criminal Code
  • conspiracy, attempt or incitement to commit a schedule 1 offence.

See s. 4(2) and Schedule 1—Bail Act 1977 (Vic) and When bail is refused.

Offences requiring a compelling reason for bail

The many new offences under Schedule 2 that have been added to the old list of 'show cause' offences include:

  • indictable offence committed while:
    • on bail for other indictable offence
    • subject to a summons to answer a charge for another indictable offence
    • on a community correction order (made for another indictable offence)
    • serving a sentence for another indictable offence
    • released under a parole order
  • an offence against the Bail Act 1977 (so breach of bail, etc.)
  • manslaughter
  • child homicide
  • intentionally or recklessly causing serious injury where gross violence
  • intentionally cause serious injury
  • rape
  • making a threat to kill (in family violence situation)
  • assault with intent to commit a sexual offence
  • incest (excluding adult consensual)
  • sexual penetration or persistent sexual abuse of child
  • abduction or detention for sexual purpose
  • kidnapping
  • car jacking
  • armed robbery
  • dangerous or negligent driving while being chased by police
  • dangerous driving causing death or serious injury
  • more drug offences under Commonwealth Criminal Code
  • persistent contravention of family violence intervention order
  • conspiracy, attempt or incitement to commit a schedule 2 offence.

If an offence is both a schedule 1 and 2 offence, it is treated as though it is a schedule 1 offence.

See s. (4A)—Bail Act 1977 (Vic)—Schedule 2—Offences—Show compelling reason and Show compelling reason.

Family violence focus

A person who is charged with persistent contravention of a family violence intervention order or threatening to kill in the context of family violence, must show compelling reason why they should be granted bail. This applies to bail applications or appeals on or after this date, regardless of when the offence was committed.

Bail decision-makers must ask if there is a family violence intervention order or safety notice against the accused and consider whether there is a risk that the accused person would commit family violence and whether this risk could be reduced by adding conditions to the family violence orders.

If there is an inconsistency between bail conditions and conditions in a family violence order or safety notice, then it is the family violence conditions that prevail to the extent of any inconsistency.

See Schedule 2 and ss. 5AAAA—Bail Act 1977 (Vic) and Family violence and bail.

Change from 'show cause' to 'compelling reason'

A person making a decision about bail for a person who has been charged with one of the offences listed in Schedule 2 must refuse bail unless the accused can show compelling reason why their detention in custody is not justified. The bail decision-maker must give reasons for their decision.

See s. 4, 4A—Bail Act 1977 (Vic).

Committing offences while on bail

It will be more difficult for a person to get bail if they commit further offences while they are charged with a Schedule 2 offence or any indictable offence.

The person must show compelling reason if it is alleged that they have committed an indictable offence while they are:

  • on bail for an other indictable offence
  • on a summons to answer a charge for another indictable offence
  • at large awaiting trial for another indictable offence
  • under a community correction order for another indictable offence
  • serving a sentence for another indictable offence, or
  • released on parole for any offence.

See Schedule 2, cl. 1—Bail Act 1977 (Vic).

The person must show exceptional circumstances if it is alleged that they have committed a Schedule 2 offence while they are:

  • on bail for a schedule 1 or 2 offence
  • on a summons to answer a charge for a schedule 1 or 2 offence
  • at large awaiting trial for a schedule 1 or 2 offence, and
  • under a community correction order for a schedule 1 or 2 offence
  • serving a sentence for a schedule 1 or 2 offence, or
  • released on parole for a schedule 1 or 2 offence.

See Schedule 1, cl. 3, Schedule 2, cl. 1—Bail Act 1977 (Vic).

Delaying decisions about bail if drug affected

Under some circumstances a bail decision-maker may adjourn a bail matter for up to 4 hours if satisfied that the accused person appears to be seriously affected by alcohol or another drug or a combination of drugs. The person can be remanded in custody during this adjournment. If, after 4 hours the bail decision-maker is satisfied that the person is still seriously affected they can adjourn the hearing for a further period of up to 4 hours.

See s. 8(3)-(6)—Bail Act 1977 (Vic).

Who can grant bail?

In most cases a bail decision-maker has the power to hear and determine bail applications. A bail decision-maker is defined as a court, a bail justice, a police officer, the sheriff, Supreme Court Bail Justice or a prison officer. This depends on the kind of offence that the person has been charged with. Only a court can grant bail if the accused person is charged with a Schedule 1 offence. If the offence is murder or treason, then bail can only be granted by a Supreme Court Judge. If the person has been charged with murder then bail may also be granted by the magistrate who is committing the person to stand trial.

See s. 13—Bail Act 1977 (Vic) and s. 115(5)—Fines Reform Act 2014 (Vic) and Who makes bail decisions.

Stage 2 reforms

These stage 2 reforms apply to bail applications or appeals that commence after 30 June 2018, regardless when the offence is alleged to have been committed.

Changes to when police and bail justices can grant bail

The restrictions that apply to bail applications needing to be decided by a court for a person who is on trial for some Schedule 2 offences or some of the less serious Schedule 1 offences do not apply to children or vulnerable adults.

If a bail decision-maker is not authorised to make a decision about bail because of the category of the offending, they must bring the person before a court as soon as possible.

See Who makes bail decisions.

Vulnerable adults

The stage 2 amendments make allowances for different treatment of vulnerable people, young people and Aboriginal and Torres strait Islanders.

A vulnerable adult, child or vulnerable person who is accused of a Schedule 1 offence and is refused bail by a police officer cannot be remanded in custody and held in a police cell for up to 48 hours. If police refuse bail for these alleged offenders they must give reasons for their decision to refuse bail and cause the arrested person to be brought before the court as soon as practicable.

If police refuse bail outside ordinary court sitting hours, the police must advise the person that they can apply to the bail justice for bail and cause the person to be brought before the bail justice as soon as practicable if they would like to apply. If the person does not want to apply for bail, police must organise for the person to be brought before the court as soon as practicable.

See s. 3AAAA, 10AA, 10(6)—Bail Act 1977 (Vic) and Who makes bail decisions.

Who is a vulnerable adult?

A vulnerable adult is a person who is a person over 18 years old who has a cognitive, physical or mental health impairment that causes the person to have difficulty in understanding their rights, making a decision or communicating their decision.

A bail decision-maker may consider a person to be a vulnerable adult, without having the need to identify the particular impairment.

Who is an Aboriginal person?

An Aboriginal person is someone who is descended from an Aborigine or Torres Strait Islander, identifies as such and is accepted into an Aboriginal or Torres Strait Islander community as a member of that community.

See ss. 3AAAA, 10AA—Bail Act 1977 (Vic) and Aboriginal people and bail.

Who is a child?

The Bail Act refers to the definition of a child under the Children, Youth and Families Act 2005. Under that definition a child is a person aged between 10 and under 18 at the time that their offence is alleged to have happened. They must not be over the age of 19 when a court procedure begins.

See Arrest of a young person—Who is a child?

Bail decision-maker to look at surrounding circumstances

When the bail decision-maker is making a decision about whether to grant bail they must take into account all surrounding circumstances that are relevant to the matter, including:

  • the nature and seriousness of the offence that is alleged
  • the strength of the prosecution's case
  • criminal history
  • how well the accused has complied with previous grants of bail
  • if at the time of the alleged offence the accused was on bail, at large, on summons, on parole or on a CCO or otherwise serving a sentence for another offence
  • the personal circumstances of the accused, including: character, background, associations and home environment
  • any special vulnerabilities of the accused, including if they are: a child, Aboriginal person, unwell or have a cognitive impairment, intellectual disability or mental illness
  • the availability of treatment or bail support services
  • any view of the victim, whether known or likely, about the grant of bail, the amount of bail or bail conditions
  • how long the accused is likely to spend in prison if bail is refused
  • the likely sentence if the accused is found guilty, and
  • whether the accused as ever expressed support for a terrorist act or organisation, or resources for a terrorist organisation.

See s. 3AAA—Bail Act 1977 (Vic).

How the reverse onus tests are to be approached

The amended Act makes it clear that where the reverse onus bail test applies, that is, where a person must show there is a:

  • a compelling reason (Schedule 2), or
  • exceptional circumstances (Schedule 1)

why bail should be granted, that the bail decision-maker must approach the decision in 2 stages:

  • firstly, they must apply the reverse onus test, and then
  • secondly the unacceptable risk test.

For example, if a decision as to bail is being made and the person who has been charged with rape, and therefore a schedule 2 offence, for which they are required to show that there is a compelling reason why they should be granted bail, the bail decision-maker must approach the question of bail by first deciding whether there is a compelling reason why bail should be granted, and if so then they must decide whether granting bail would pose an unacceptable risk.

So if there is a insufficient compelling reason, the decision maker need not go on to decide whether granting bail would pose an unacceptable risk.

The Act includes flow charts to explain how the decisions are to be approached.

See ss. 3D, 4A, 4B, 4C, 4D, 4E—Bail Act 1977 (Vic).

Unacceptable risk

The Act includes flow charts to explain how the decision about whether a person poses an unacceptable risk is to be approached. This test must be applied to all bail applications. The bail decision-maker must ask whether the accused presents an unacceptable risk of:

  • endangering the safety and welfare of any person
  • committing an offence while on bail
  • interfering with a witness or obstructing the course of justice in any matter, and/or
  • failing to answer bail.

See ss. 3D (flowchart 3), 4E(1)(a)—Bail Act 1977 (Vic).

Terrorism reforms

That Act makes it harder for accused to get bail where they have a terrorism record or are considered to pose a terrorism risk.

When exceptional circumstances test applies

In addition to situations where an accused has been charged with a schedule 1 offence, the exceptional circumstances test also applies where a person is charged with a Schedule 2 offence and:

  • they have a 'terrorism record' or
  • the court considers that they pose a terrorism risk.

See new s. 4AA (2) (a) and (b)—Bail Act 1977 (Vic).

When compelling reasons applies

Compelling reasons are required where the #accused is charged with an offence not in Schedule 1 or 2, and they have a terrorism record or are a terrorism risk (new s. 4AA (4).

A person has a 'terrorism record' if they have been convicted of a terrorism or foreign incursion offence or are or have been subject to a terrorism-related order (new s. 3AAB).

New s. 8AA sets out the process and factors the court must consider when deciding if the person is a terrorism risk.

Only a court can determine bail for an accused charged with certain terrorism offences or who have a terrorism record or are a terrorism risk (s. 10A(5AA).

Terrorism related matters are added to the surrounding circumstances s. 3AAA that the court must take into account when determining bail.

See Practice Resources—Criminal law resources—Bail reforms 2018—Changes from 1 October 2018 and ss. 3AAA, 3AAB, 4AA, 8AA, 10A(5AA)—Bail Act 1977 (Vic).

More information

Legislation

Bail Act 1977 (Vic)

  • s. 1A—purpose
  • s. 1B—guiding principles
  • s. 3AAAA—defines a 'vulnerable adult'
  • s. 3AAA—defines 'surrounding circumstances' which bail decision-maker must put into place
  • s. 3AAB—defines a 'terrorism record'
  • s. 3D—adds 3 flowcharts to help the bail decision-maker approach the question of bail
  • ss. 4(2) and (4A)—Accused held in custody entitled to bail
  • s. 4A—schedule 1 offences—step 1—exceptional circumstances test
  • s. 4B—schedule 1 offences—step 2—unacceptable risk test (repealed on 1 October 2018)
  • s. 4C—schedule 2 offences—step 1—show compelling reason test
  • s. 4D—schedule 2 offences—step 2—unacceptable risk test
  • s. 4E—all offences—unacceptable risk test
  • s. 4AA—when 2 steps test applies
  • ss. 4(4H), 4(4I)—changes to focus on family violence
  • s. 8AA—court to make a preliminary determination if terrorism risk
  • s. 10—power of a police officer, sheriff or authorised person to grant or refuse bail
  • s. 10A(5AA)—power of bail justice to grant or refuse bail
  • s. 13—treason, murder and Schedule 1 offences (must be heard by the Supreme Court), or Magistrates' Court in relation to committal for murder
  • s. 13A—if the accused is on 2 or more undertakings of bail
  • s. 34—transitionals make it clear that changes apply from 21 May for people seeking bail or appealing a bail decision, regardless of when the offence happened.
  • Bail Act 1977 (Vic)—Schedule 1—Offences—Exceptional circumstances
  • Bail Act 1977 (Vic)—Schedule 2—Offences—Show compelling reason

See Bail Act 1977 (Vic).

Fines Reform Act 2014 (Vic)

  • s. 115(5)—persons who an enforcement warrant can be directed to include bailiffs of the Supreme Court or a prison officer.

See Fines Reform Act 2014 (Vic).

Children, Youth and Families Act 2005 (Vic)

  • s. 3—defines a 'child'

See Children, Youth and Families Act 2005 (Vic).

References

Department of Justice and Regulation

The department has developed a table that summarises the 2-stage changes to the Bail Act 1977. They have also explained how these changes will affect an accused person.

Overview of changes to Bail Stages 1 and 2 (doc, 173 KB)(opens in a new window)

A Table produced by the Department of Justice and Regulation that sets out the changes that commence in May and July 2018.

How the accused will be treated differently under the new Bail Act (doc, 130 KB)(opens in a new window)

This Department of Justice and Regulation paper explains the practical differences that will apply after both stages of amendments have commenced.

Updated