Significant Amendments to the Bail Act 1977 – Effective from 26 March 2025

The Victorian Parliament has recently passed significant amendments to the Bail Act 1977, introducing critical changes to the legal framework governing bail decisions, and the matters bail decision makers are required to consider when hearing applications. The majority of these reforms will came into effect today, 26 March 2025, and mark a significant shift in how bail applications and determinations are handled in Victoria from today onwards. Today’s changes reflect only the first tranche of amendments to the Act, with the second tranche of changes anticipated to commence application in the coming months.

Robinson Gill remain in fervent opposition to these changes, as we know that such regressive amendments will invariably impact vulnerable communities, including First Nations people, women and children. We continue to call for the implementation of Poccum’s Law, in full.

Despite this however, and in response to these legislative updates, legal practitioners (and clients alike) need be across the key amendments, in order to ensure that changing applicable bail thresholds are being met in both evidence and in submissions, and that applications for bail are robustly prepared having regard to the new regime, with the heightened focus on community safety.

Summary of key amendments to the Bail Act 1977 – Changes commencing 26 March 2025

1. New section 1B(1AA): Community safety as an overarching consideration in bail decisions
   • The amendments introduce community safety as an overarching principle in bail determinations. Bail decision makers will be required to give increased consideration to community safety and protection, with regard to the potential risks posed by granting bail, and particularly in cases involving serious violent offences or individuals with prior criminal offending and / or breaches of bail conditions. The new wording in the Act states that “Parliament recognises the overarching importance of maximising community safety to the greatest extent possible”. The change firmly imports the notion that community safety take primacy as a consideration in all applications for bail.
   • Whilst the presumption of innocence; the promotion of fairness, transparency and consistency in bail decision making; and the promotion of public understanding of bail practices and procedures remain, and are matters which do not fall away in the amendments, they appear to take less primacy – and we keenly await decisions of the higher courts as to interpretation of the new provision.
2. Section 3B(1)(a) repealed: Removal of ‘Remand as a Last Resort’ for children
   • Prior to the changes and in relation to an application by a child accused, the Act required the bail decision maker to take into account the need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being a last resort. The amendments have struck out entirely the words “with remand of the child being a last resort”.
3. New section 30B: The re-introduction of the offence of Committing an Indictable Offence Whilst on Bail
   • Under the new amendments, the offence of committing an indictable offence while already on bail will again constitute a separate criminal offence. The offence was scrapped in 2024 in response to the findings of Coroner McGregor in the Inquest into the death of Veronica Nelson (the findings for which can be located here), and in response to bail laws described by his Honour as the “complete and unmitigated disaster” (in reference to 2018 Bail Act amendments).
   • The re-introduction of this offence under s 30B will carry with it a maximum penalty of 3 months imprisonment, or 30 penalty units.
4. New sections 34(24B) and 34(24C): Amendments to apply to applications or appeals commenced on or after 26 March 2025, regardless of when the offending occurred
   • The inclusion of s 34(24B) provides that these new amendments apply to applications or appeals commenced on or after the date of these amendments, regardless of when the offending occurred.
   • Further, the new section 30B offences – that is, Committing an Indictable Offence Whilst on Bail – applies only to offences alleged to have been committed on or after the commencement of these amendments.
5. The inclusion of contravening bail condition offence in Schedule 3 of the Bail Act 1977

For legal practitioners, a tracked changes version of the amendments to the Bail Act 1977 can be located here.

Addressing the overarching consideration of community safety under the new regime

Despite the amendments, it remains our view that in granting bail, in some cases and on the right facts, the release of an accused person or child has the actual effect of advancing the interests of community safety.

Though a decision handed down prior to the current amendments, in the matter of Re Gaylor [2019] VSC 46, Riordan J made the following observation:

[38] Third, although the grant of bail may expose the community to some short-term risk that the applicant will reoffend while on bail, the incarceration of this young man on remand for a further period of about 12 months is most unlikely to reduce the risk of reoffending when he is ultimately released; and may have the opposite effect. A grant of bail, as compared to remand for up to 12 months, will enable the applicant to receive intensive family support and treatment in the community. This may maximise his chance of rehabilitation and minimise the long term risk to the community of future offending.

[41] In these circumstances, I consider that placing the applicant on bail, subject to appropriate conditions, is in the interests of the community. This is a compelling reason justifying the grant of bail.

We expect Re Gaylor to continue to have significant relevance in future applications for bail – having regard to the immovable fact that periods of imprisonment increase recidivism, and that a grant of bail quite often remains in the interest of community safety given it allows opportunity for the return of an accused to familial supports, employment, engagement in drug and alcohol treatment, and engagement in mental health treatment  - factors and supports which are sorely absent in the carceral system.

The bail system in Victoria, despite backwards changes, will continue to play some role in maintaining a fair and balanced legal system. Though we are particularly concerned about the impact on Aboriginal people, children and women, we will continue to advance our client’s positions in relation to dignified and transparent treatment, and without conceding any abrogation of the presumption of innocence. For practitioners, staying well informed of key decisions in the coming months will be critical to advancing robust and well prepared applications for bail.