Tough new bail laws have significantly displaced the right of a person’s liberty because they are more likely to be locked up, two senior Ballarat lawyers say.
More people are in custody and it’s largely due to the introduction of new bail laws on July 1 after the outcry over the Bourke Street rampage and the 2013 rape and murder of Jill Meagher in Melbourne.
Ballarat senior criminal lawyer Scott Belcher said it was wrong the bail laws now included a ‘compelling reasons’ test, which replaced ‘show cause’.
“The application of the new test as set down by the Supreme Court, and applied by the Magistrates Court, only falls a few steps short of the ‘exceptional circumstances’ test previously required for breaching suspended sentences, or very serious offences when making a bail application,” Mr Belcher said.
“The compelling reasons test is out of whack with the balance required for the scales of justice to work effectively in all criminal courts across Victoria.
“The test should be to ‘demonstrate very good reason’ with either one significant factor alone, or a combination of relevant factors.”
Mr Belcher said the current bail test set an unrealistic target for courts to meet when considering whether or not to grant bail
“Members of the judiciary are expressing concern privately, but are unable to comment publicly due to separation of powers and their independence from government,” he said.
Since the bail laws were tightened, an accused person must be refused bail if a magistrate believes they are an unacceptable risk to the public’s safety or of failing to appear in court – even if they do show compelling reasons.
Senior criminal lawyer, Andrew Madden of Harper Buscombe and Madden Lawyers, said the new bail laws had displaced the primacy of the right to liberty.
READ MORE: Ballarat cells bursting at the seams
“I have one matter at the moment, where on the evidence as put currently before me, I am of the opinion that the charges aren’t made out.
“But because of the interpretation of the new bail laws the accused is automatically placed in the category of having to show compelling reasons, has not shown compelling reasons and has been deemed to be an unacceptable risk,” Mr Madden said.
“Under the old laws the accused would likely have gotten bail. Even if the accused is found guilty I am of the opinion that a term of imprisonment would not necessarily be imposed.”
Mr Madden said the new laws made it harder for an accused person to be released on bail. He said he had had two successful bail applications since the new laws, including a mother of a newborn and a man who pleaded guilty to the charges.
“The issue is that a lot of accused are doing time on remand for matters for which they, in my opinion, may have only received a fine or community corrections order,” Mr Madden said.
“Even if you believe that locking greater numbers of people up and for longer periods of time is the right way to go, the simple economic cost of building more prisons and incarcerating more people is a significant burden on the public purse.”
Have you signed up to The Courier's daily newsletter and breaking news emails? You can register below and make sure you are up to date with everything that's happening in Ballarat.