Rachel spoke on the Bail Further Amendment Bill 2025. She criticised the bill for introducing harsh measures likely to disproportionately affect young and marginalised people, with limited consultation and safeguards. She called for a more evidence-based, rehabilitative approach to youth crime, proposing a sunset clause on the new bail test to ensure accountability and future review.
Tuesday the 26th of August, 2025
Victorian Legislative Council
Rachel Payne (South-Eastern Metropolitan):
I rise to speak on the Bail Further Amendment Bill 2025 on behalf of Legalise Cannabis Victoria. I have said it before and I will say it again: here we go again. Only a few months ago we were in this place debating the first tranche of bail reforms, and only a few months before that we were debating an overhaul to the youth justice system. It is still incredible to think about how this government undertook a massive reform of the youth justice system and then, before the changes had fully come into effect, changed bail laws. Reforms to the youth justice system were evidence led and largely unpoliticised; the same cannot be said for changes to bail laws.
It is disappointing to see the government turn a blind eye to the relationship between incarceration and recidivism. With that being said, it is not surprising. This is a government that turfed out plans to improve the bail system for young people and backflipped on their promise to raise the age of criminal responsibility. There is a reason the government had to do their bail reforms in two tranches: they know the dangers of what they are doing in tranche 2. There is a real risk of repeating the perverse outcomes from similar previous laws, like the doubling of the rate of Indigenous women in prison. While we are thankful that, unlike with tranche 1, we were able to receive a briefing on the bill well in advance of it coming before our chamber, consultation was still lacklustre. With the opposition’s support, the laws will fly through. This has left the government unwilling and uninterested in improving these laws.
Motivators of crime remain unaddressed
Amendments that could reduce the impact on marginalised and vulnerable communities were not given real consideration. We want to be clear: everyone has the right to feel safe, but we need to do the hard work to address complex motivators of crime, looking at schooling attendance, rates of family violence, mandatory treatment services, timely access to mental health support and cost-of-living stresses. More should be done to ensure, wherever possible, the justice system can play a rehabilitative role in people’s lives, particularly for children who have not even fully developed consequential thinking. Entrenching children and young people in the justice system just leads to reoffending, and in the long term it does nothing to make the community safer.
Turning to the bill itself, it makes sweeping changes to the Bail Act 1977. Central to these changes is the introduction of a new high degree of probability test and the creation of a second-strike rule. The new high degree of probability test will form part of the existing unacceptable risk test for people accused of committing a specified schedule 1 offence while on bail for another specified schedule 1 offence. This will require the bail decision maker to be satisfied there is a high degree of probability that the accused would not commit a specified offence while on bail. Specified offences include armed robbery, aggravated burglary, home invasion, aggravated home invasion, carjacking and aggravated carjacking. You do not have to read between the lines to see that these offences have not been selected because they are the most violent and gruesome of offences, but because they allow this government to target young repeat offenders.
The second-strike rule created in this bill is where someone is accused of an indictable offence and they later commit an indictable offence while on bail for the first offence. This will create an uplift where an applicant for bail will be required to pass the reverse onus compelling reasons test rather than the lesser unacceptable risk test. Importantly, the bail decision maker will be required to consider circumstances surrounding alleged offending as well as Aboriginal-specific and child-specific factors where relevant. It was pleasing to see that the bill provides a lengthy list of carve-outs for lower-level offences, including low-value theft and criminal damage, non-violent property offences and lower-level drug possession. These carve-outs were included to avoid capturing non-violent offences that are often linked to disadvantage, homelessness and other factors. Unfortunately, these carve-outs are limited in their application. The value limit of these offences is less than $2500 for theft and criminal damage and less than $5000 for non-violent property and deception offences. If someone steals a backpack, they may find that they unknowingly stole a phone and laptop, and then all of a sudden they are subject to a strict reverse onus bail test. While it was excellent to see that this bill carves out lower-level drug possession offences, it only does so for small quantity possession, and a wide range of drug-related indictable offences will continue to be captured by this new strict bail test.
Alongside some of my crossbench colleagues, we will be putting forward questions during the committee-of-the-whole stage to understand if it is the government’s intention to capture so many non-violent offences and particularly non-violent drug offences. While the Herald Sun talk about the crime wave in Victoria, we get the sense they are not talking about your neighbour quietly growing some cannabis plants in their backyard. These laws apply to them all the same. It is good to see that this bill amends the existing statutory review to include these reforms and examine the impact on Aboriginal and Torres Strait Islander people. However, this review could be as late as two years from now, and we have no guarantees about the transparency of this process and whether any findings will be made public. We do not trust that this government will act on any negative findings of this review, particularly if the media hold up its pressure. On that note, we will be moving amendments to this bill, and I ask that they now be circulated.
Sunset clause extension allows for proper scrutiny
This amendment will include a three-year sunset clause for the high degree of probability test, meaning that after three years it will cease to operate. In April 2024 New South Wales introduced somewhat similar changes to their Bail Act 2013. These changes included a temporary additional bail test for young people aged between 14 and 18. Under this test, unless the bail authority has a high degree of confidence that the young person will not commit a serious indictable offence while on bail, bail is to be refused. This test was originally subject to a 12-month sunset clause, which was extended for an additional four years earlier this year. When extending this test, the responsible Labor minister made clear that the bail test was only ever intended as a circuit breaker to immediately respond while broader community-based programs were implemented.
The decision to extend the sunset clause was not taken lightly. It was justified by reference to continued efforts to reduce youth crime through therapeutic and community-based solutions that aim to minimise a young person’s contact with the criminal justice system over the long term. The three-year sunset clause proposed in our amendment will bring us in line with the New South Wales 2028 sunset date and the expected completion of the statutory review.
This government talks a big talk about investing in bail support and interventions to tackle the underlying causes of crime. Now here is your chance to prove those were more than mere words. As we have no assurances from the government about the transparency and reporting obligations of the statutory review, there is no guarantee that any perverse outcomes of these laws will be addressed. Including a sunset clause means that if the government wants to keep their high degree of probability test, they can come back to Parliament and be held accountable for that decision. This will give us the opportunity to properly scrutinise the outcomes of these changes to bail laws. We encourage all parties to support this amendment.
Our amendment does not affect the operation of the bill here and now. What it does do is give us the chance to change course if needed so that we can achieve the long-term goal of reducing youth crime through therapeutic and community-based solutions. We understand there will be further amendments to the bill for additional safeguards that will minimise unintended consequences on vulnerable and over-represented groups. We will be supporting these and the need for further consultation, because when we get it wrong, lives are changed forever, and people die.
I would like to close my contribution, as I did my contribution on the first tranche of these bail reforms, with a message for the government. If police resourcing is an issue, regulation of cannabis offers a possible answer. In Atlanta decriminalisation led to a 20 per cent drop in crime despite fears it would do the opposite. Thanks to these changes, police could shift their focus to serious violent offences rather than dealing with low-level cannabis arrests. If this government is so set on bail reform, the least they could do is focus on violent crimes rather than making bail even harder to get for nonviolent offenders.
Related:
> Criminal reoffending persists unless root causes addressed – Rachel Payne
> LCV: Free up police to fight crime – decriminalise cannabis as NEW parliamentary report recommends – Rachel Payne
> Youth Crime Prevention – Rachel Payne
> Public education funding – Rachel Payne
> Criminalisation of begging punishes Victoria’s most vulnerable – Rachel Payne
> Youth Justice Bill 2024 – Rachel Payne
