After Bourke St, Victoria should not rush in on bail reform

The horrifying event of last Friday in Melbourne’s CBD was yet another episode where a person used a vehicle as a weapon of destruction. It left five people, including a baby boy, dead. Another 30 people were injured, many seriously.

The alleged perpetrator, Dimitrious Gargasoulas, was revealed to be on bail in relation to another alleged offence six days before the attack, despite opposition from Victoria Police prosecutors. A bail justice (an out-of-hours volunteer honorary justice, like a justice of the peace) had granted Gargasoulas bail on January 14.

In response, Victorian Premier Daniel Andrews has announced that magistrates, rather than bail justices, will be exclusively deployed to hear bail applications in serious matters. Andrews has also directed the former director of public prosecutions, Paul Coghlan, to review Victoria’s bail system.

Does the bail justice system work?

Faced with cries to “do something” when a crisis erupts, governments, understandably, become risk-averse. So, it was quite predictable that the Andrews government’s first target in this case was the bail justice system. This uniquely Victorian initiative has drawn praise for more than two decades.

While one can sympathise with those who are calling for review and change, we need to exercise caution before overhauling the operation of bail laws on the basis of one, albeit horrendous and tragic, case.

The bail justice system is one of the reasons usually given to explain why Victorians continue to enjoy the lowest remand-in-custody rates in Australia.

There is no evidence that that achievement has compromised safety for Victorians generally. Moreover, police officers actually make 90% of bail decisions; magistrates or bail justices are only called in to adjudicate in the event of police denying bail.

There is also no reason to suspect that a magistrate would not have reached the same bail conclusion as the bail justice did in relation to Gargasoulas on January 14.

Denying bail fills our prisons

The denial of bail is also a significant factor in the seemingly unstoppable rise in Australia’s prisoner numbers.

There was yet another significant rise in numbers last year. In the September quarter of 2016, the average number of full-time prisoners was 38,998. Of these, 32% (12,332) were unsentenced – that is, denied bail.

This takes Australia, for the first time in its modern history, out of the 15-30% range – which includes, for example, the UK, the US, Canada, Russia, Israel, Poland, New Zealand and Germany – and puts it into the 30-50% range found in Brazil, Thailand, Papua New Guinea, France, Kenya and Mexico.

The number of unsentenced prisoners in Australia increased by 22% from 2015 to 2016. This followed a 21% increase from 2014 to 2015. Over the last five years, unsentenced prisoner numbers in Australia have increased 81%. The trend is financially and socially irresponsible and unsustainable.

Australians need to be a little more forgiving regarding the decisions of bail authorities when their decisions turn out to be ill-fated. Thousands of accused persons are granted bail each year over police objections with few adverse consequences.

Australia needs to be very careful not to allow the bail system – whether it is overseen by magistrates or lay justices – to become a political scapegoat at the hands of commentators exercising 20/20 hindsight.

Finally, we must be very careful not to rush to judgement and pretend that by tightening certain justice processes the problem will go away. Simply putting (and keeping) behind bars for months at a time everyone whom someone has deemed to be a risk to their family’s safety, their own safety or public safety is not the answer.