Member for Northern Victoria
Derryn Hinch’s Justice Party

Loophole in our Bail Laws

My adjournment matter is for the attention of the Attorney-General, and it relates to what I would term a loophole in our bail laws. There is a problem regarding extraterritorial laws—that is, when you commit an offence on one side of the border and then commit another offence on the other side. For cross-border communities this is not uncommon. In places like Bordertown near my electorate, or more so for the many border communities in Ms Maxwell’s electorate such as Echuca-Moama and Albury-Wodonga, travelling to and fro is a daily occurrence. This loophole has been in effect since we reformed our bail laws. In Victoria, when someone commits a schedule 2 offence, including manslaughter, home invasions and arson causing death, whilst on bail for a less serious non-schedule 2 crime—for example, shop theft or assault—they must satisfy a show compelling reason test to be granted bail. If they commit a schedule 2 offence whilst on bail for a schedule 2 offence, the higher exceptional circumstances test must be proven. If someone is currently on bail in New South Wales, though, for an offence that is equivalent to a Victorian schedule 2 offence and they then cross the border to Victoria and commit a schedule 2 offence, Victorian courts cannot take into account their current bail in New South Wales during a bail hearing as they would be placed into the show compelling reason test only. More worryingly, if you are bailed in New South Wales for a non-schedule 2 offence and then commit an offence of the same level in Victoria, neither test needs to be satisfied and you will be given bail unless you are a risk to the community, as Victoria does not recognise New South Wales bail. If either a show compelling reason test or an exceptional circumstances test is required, there is a reverse onus where the offender must show reason why they should be granted bail, but again this is only under Victorian law. In both circumstances the court will then consider the unacceptable risk test, but the bar is clearly lower for the accused than if both sets of offending were to be committed in Victoria, so where you commit the offence and in which order you commit them your release on bail or remand in custody becomes the luck of the draw. This mistake was made when our bail laws did not recognise New South Wales bail through our bail reform some years ago. This has become a problem when it comes to prosecution too, because there is no precedent between the two states. This means that the bail laws can be applied inconsistently for alike cases when state borders are involved. In 2008 an act passed in Western Australia that dealt with a similar problem, and whilst it was mainly aimed at family violence cases, it dealt with a number of crimes, including drink and drug driving. The Cross-border Justice Act 2008, between the Northern Territory, Western Australia and South Australia, means that the law can be dealt with consistently in border areas. Whilst I do not purport to have the answers here, I think the cross-border commissioner should explore a similar scheme to address the inconsistency in the law. I would like to acknowledge my colleague Tania Maxwell, who has led many conversations with the commissioner about improving a number of issues across these communities. The action that we seek from the Attorney is for her to meet with the cross-border commissioner and the police prosecutors in border communities to talk about how this issue is affecting the community, offenders and the application of the law.


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