Ms PATTEN (Northern Metropolitan) — I would also like to speak to the Bail Amendment (Stage One) Bill 2017. I will also be moving amendments to this bill, although they are echoed in Ms Pennicuik’s amendments 3, 4 and 5, and I believe her amendments will take precedence. Largely and principally today I would like to make a contribution about those amendments. I also intend, in my contribution, to actually speak about the bill. I do not think Mr Finn mentioned bail once in his contribution. He certainly did not appear to have any interest in this piece of very important legislation.
It is quite right that our bail laws are scrutinised, and after the Bourke Street tragedy it is absolutely correct. Appointing a former Supreme Court justice and Director of Public Prosecutions, the Honourable Paul Coghlan, QC, to conduct a review of the bail system was very intelligent, as were Mr Coghlan’s recommendations. Here was an expert providing us with some expert advice. The bill implements a number of the recommendations that Mr Coghlan made — not all of them, as Ms Pennicuik outlined in her contribution. I too think it is disappointing that we were not able to adopt all of the recommendations, but I look forward to stage 2, and maybe we will see a more fulsome recognition of the work of Mr Coghlan in that.
The one glaring exception I would like to cover is that on application for bail an accused has to meet a certain threshold before release — Mr Bourman went through this definition — and that threshold will vary according to the nature of the offence alleged. In short, as we know, the more serious the offence, the harder it is to get bail. That is common sense, and that is what the community expects from us. Currently low-level offenders will be bailed automatically, unless they pose an unacceptable risk. This again is common sense. But this is not the case for what you would call mid-tier offenders, because they must show cause why their detention is not justified. Of course serious offenders will only be granted bail in absolutely exceptional circumstances. This is the kind of three-tiered system that we have for bail.
In his review of the bail system Mr Coghlan recommended that the show-cause threshold be clarified and replaced with ‘show good reason’. This clarification was really to make it easier to understand. Show good reason, he felt, was far easier for the community, prosecutors and police to understand than a more amorphous term like ‘show cause’. But this bill has instead introduced that test as ‘show compelling reason’. It has not taken the advice of the good Mr Coghlan to use ‘show good reason’ but instead has introduced ‘show compelling reason’. By reframing this test the bill steps directly away from what Mr Coghlan recommended and creates an even higher reverse onus for the accused in this category.
I do not take issue at all with governments shifting certain serious offences into the exceptional circumstances category. I think that is what the community wants, and I was pleased to hear that even Mr Finn was quite supportive of those sections of the bill. But to ‘show compelling reason’ I object. I reiterate that this test does not apply to the most serious of offences but does apply to a significant proportion of those who are seeking bail. As a result of this we will see more people in custody.
I approached the Attorney-General about this. In a question without notice I asked him about the government’s intention to move away from Mr Coghlan’s recommendations and to act on their own recommendation and change it to ‘show compelling reason’. The Attorney-General indicated to me that the change in wording in this bill is consistent with the spirit of the recommendation. It is not. This is a significant change to what Mr Coghlan said.
With all due respect to the Attorney-General, I think Mr Coghlan’s experience in this area is significant — possibly more significant than that of many of us in this house. I think we should respect Mr Coghlan’s expert advice on this. To say that the bill is consistent with the spirit of the recommendation is, frankly, probably a bit patronising to Mr Coghlan. The Law Institute of Victoria and Liberty Victoria have carefully articulated how and why this is not in the spirit of the recommendation. Most experienced criminal lawyers would also argue that this is not in the spirit of Mr Coghlan’s recommendation. This bill will have a very significant effect.
Matters of fairness aside, Victoria’s remand courts and prison system are simply not equipped to accommodate another increase in remandees. As Mr Coghlan stressed in his second advice to government, it is untenable to just keep remanding more and more people.
I was fortunate enough to be up early this morning to take part in a Skype seminar with an expert.
Mr Ramsay — How early?
Ms PATTEN — It was quite early, Mr Ramsay. I was sorry I did not see you there. Jenna Moll is from the very conservative Texas Right on Crime organisation — an organisation that I expect Mr Finn would be very supportive of in most circumstances. Ms Moll is a conservative, and she pointed out to me that in Texas and in 31 other states in the US they have realised that remanding people — throwing people in prison — does not equal public safety. It does not work.
It took them a long time, and in that time they jailed 2.2 million people before they realised that doing so was not actually reducing their crime rates at all. It was not reducing their recidivism rates at all. In fact, it was doing the opposite. They knew that they needed to change; they were not going to keep going further and further down this rabbit hole of locking more people up. As Mr Bourman said, if you do not want to go to jail, do not do the crime. I am sorry, but can we just quickly reflect on who we are locking up. Who are we locking up? We are locking up people with mental health issues. We are locking up people with cognitive disabilities. We know that if we put a child into our child protection system, we double the chance that we will lock them up as an adult. We know that if someone has a drug problem, they are very likely to end up locked up.
Do you know what Americans have done? Instead of building more prison beds, 31 states in America are building more treatment beds. We are building 1000 more prison beds at Ravenhall to lock up more people. It would appear that that is our only answer to addressing crime in our society, but we know it is not the answer. All of the evidence shows us it is not the answer.
I would be interested to know what percentage of the 1000 new beds in our prison system are treatment beds. What ratio of prison beds to treatment beds are we building? We know that if we can keep someone out of jail, they are less likely to commit a crime. If you send a drug addict to jail, guess what? They get to meet a whole bunch of new drug dealers. If you send someone who is very poor to jail, guess what? It makes it even less likely that they will be able to get a job in the future and more likely they will commit a crime.
This is not the way we should be going. There are smarter ways to do this. Being hard on crime is actually just being really dumb on crime. You need to be smart on crime. I am talking about Louisiana, Georgia, Texas and Tennessee. We are not talking about progressive, radical states. We are talking about what they like to call the red states of the United States — the very conservative states. They are saying, ‘What you’re doing now is wrong’. We have learned this. We have learned that being tough on crime, being tough on a criminal is not putting them in jail for 12 months; it is putting them on probation and putting them on community orders for five years where they must get a job, they must undergo treatment and they must report. That is being tough on crime. Sending a drug addict to jail to meet a whole bunch of drug dealers is not being tough on crime, nor is it being smart on crime.
By changing the show-cause test but not using ‘show good reason’, which was Justice Coghlan’s recommendation, and instead changing it to ‘show compelling reason’, we will be locking more people up. My proposed amendments, as I said, completely replicate Ms Pennicuik’s amendments 3, 4 and 5, so there is no need to circulate them, but I think they would be one way to restore Justice Coghlan’s original recommendations. In the spirit that we cannot keep remanding people, cannot keep filling our prisons with more people, we have to take on new options.
