In light of the damning findings of the Coroner in relation to the tragic death of Ms Veronica Nelson, now is the time to fix Victoria’s broken bail laws. The Coroner has found, in the clearest terms, that Victoria’s harsh bail laws breach the Victorian Charter of Human Rights and Responsibilities.
The 2017-8 reforms to Victoria’s bail laws went far beyond those recommended by the Coghlan Review and the circumstances of the Bourke St tragedy. Many organisations, including Liberty Victoria, warned of the likely impact of a penal populist approach to bail reform – including the discriminatory effect on First Nations Peoples and women who are commonly charged with repeated low-level offending.
These warnings were ignored and our broken bail laws have now had tragic consequences.
This is not the time for piecemeal change. The Government must not just pursue some narrow “carve out” amendment to cover the circumstances faced by Ms Nelson.
An applicant for bail should not be required to demonstrate that they do not pose a risk to community safety in order to avoid the impact of a reverse onus provision. That would be very difficult to prove, even for many low-level alleged offences. Given the presumption of innocence and the rights to liberty and freedom of movement as protected by the Charter, the onus should always remain on the State to demonstrate why a person being held in custody before hearing or trial is justified and necessary.
Both the Victorian Law Reform Commission (VLRC) and our Superior Courts have recognised that reverse onus provisions cause injustice. The Coroner has now observed the bail reforms have been a “complete and unmitigated disaster”. As recommended by the VLRC, there should be a single test for bail, with the onus on the prosecution to establish that an applicant is an unacceptable risk of failing to appear, interfering with witnesses or committing a serious indictable offence in order for bail to be refused.
The Courts have endorsed that that “this reform would greatly simplify Victorian bail law, without weakening it in any way”. With respect we agree.
President, Liberty Victoria