Liberty Victoria Statement on the Victorian Government’s Backflip on Bail Reforms for Children and Proposed Electronic Monitoring

In 2023, the Victorian Government delayed changes to the Bail Act 1977 (Vic) (Bail Act) designed to reduce the number of children remanded in custody awaiting the conclusion of their criminal proceedings. The proposed changes included removing the reverse onus test, where— subject to fairly low criteria — an accused child would have to demonstrate either “compelling reasons” or “exceptional circumstances” to be granted bail.

This test has made it much harder for many adults and children to get bail. Instead, they’ve been remanded in onerous circumstances, even when it was likely that the time spent on remand would be longer and more severe than any sentence that would be imposed if the adult or child accused were found guilty. We know that imprisonment is criminogenic. In the long run leaving children locked up on remand makes the community less safe.

Children from First Nations communities and from culturally diverse backgrounds were particularly affected by previous bail laws with respect to children.

Further, the reverse onus provisions mean that a child may not present as an “unacceptable risk” of flight, interfering with witnesses or committing a serious indictable offence, and yet be refused bail because they have not met the reverse onus. This breaches the right to liberty pursuant to the Charter of Human Rights and Responsibilities Act 2006 (Vic).

These reverse onus provisions were the subject of criticism by the Courts (see Coroner McGregor’s findings in the Inquest into the death of Veronica Nelson) and have been some recent amendments to the Bail Act.

The Attorney-General, Jaclyn Symes, had indicated that the government would still remove the “reverse onus test” for children in all cases under a Youth Justice Bill scheduled to be introduced this year.

However, on 20 March 2024, Ms Symes announced that the government has chosen not to implement those important changes, which were designed to reduce the number of children being held in custody for significant periods of time. At the same time, Ms Symes indicated that the government would instead trial electronic monitoring bracelets.

Liberty Victoria opposes both the backflip on the removal of the reverse onus test for children, and the trial use of electronically monitored bracelets on children.

The reverse onus test is not fit for purpose. Experts have, time and time again, commented on how these provisions catch vulnerable adults and children and how the provisions have in practice resulted in those who commit low level offences being denied bail. This is even more acute with children. Placing children in prison, awaiting the outcome of their cases, stigmatises children, often at a time when they should be diverted from the criminal justice system. They are separated and isolated from their families, communities and education. Instead, they are regularly imprisoned with more seasoned offenders who can unduly influence them. Remanding children has no positive effect, only negative consequences for the child and the whole community.

Children from First Nations communities and culturally diverse backgrounds will continue to be detained, are particularly vulnerable to becoming entrenched within the criminal justice system and are significantly over-represented within prison populations.

It has been reported that one justification from Ms Symes for not abolishing the reverse onus test for children was that ‘young people were already demonstrating they should be released on bail’ and that she had heard that in practice children were ‘already passing those tests’. It is not clear who has informed the Attorney-General of this information, but it is not accurate.

The Attorney-General’s justification does not withstand scrutiny having regard to a recent decision by Justice Incerti of Re PJ [2024] VSC 97. In that decision, a 16-year-old Aboriginal boy applied for bail which was initially refused in the Children’s Court. Worryingly, a youth justice worker in that case conceded that the increased discussion regarding youth crime has meant that Youth Justice has adopted a more conservative approach in their bail assessments for children. Justice Incerti expressed concern that ‘Youth Justice was considering public policy over the individual merits of a case’. Given this evidence and the apparent approach by Youth Justice, it seems that the hurdles for children getting bail are getting higher and are not as easily overcome as the Attorney-General has claimed.

The use of an electronic bracelet stigmatises children. It will act as a deterrent on children returning to schools or work and engaging in pro-social activities. Having a visible device attached to them is likely to result in other children noticing and commenting upon the difference. This should be a time when the accused young person should be encouraged to engage in pro-social activities, such as school, sports and employment, in order to deter them from crime. Instead, the wearing of a device will have the opposite impact and may further marginalise and criminalise young people at a time when they are vulnerable to the influence of others. An ankle bracelet is another form of punishment and does not consider the primacy of trying to rehabilitate children to try to ensure they do not return to the criminal justice system.

Liberty Victoria calls upon the Attorney-General and the Allan Government to re-engage with criminal law experts, such as the Victorian Aboriginal Legal Service, Victoria Legal Aid, the Criminal Bar Association and the Law Institute of Victoria and listen to their advice. These organisations have significant experience as to what is happening on the ground, and these organisations have all called for the reverse onus provisions to be abolished for children.

Rather than backflipping on the basis of media reporting on a “youth crime crisis that doesn’t exist”, as was acknowledged by the Attorney-General in 2023, the Allan Government should be brave and implement the changes it has committed to – reforms that it knows are based on evidence and are in the long-term interests of all Victorians.