People who are charged with offences and held in custody can be released upon an undertaking called “bail” to appear before a Court at a later date. In some circumstances a Police Sargent or the officer in charge of a police station may grant bail to a person in custody. Otherwise, the person must be brought before Court (or a Bail Justice if outside court sitting hours) to determine whether bail should be granted or refused.
The court will refuse bail if there is an unacceptable risk that the person charged will not appear at court on the specified day, or when it is thought that the person may commit other offences whilst on bail, endanger the public, interfere with witnesses or otherwise obstruct the course of justice.
A number of conditions can be imposed on a person who is granted bail. These include:
Own undertaking: When the person undertakes to appear at Court on a specified date.
Deposit: When a person lodges money or property with the Court. If the person charged does not appear at the specified date of their hearing they may forfeit the amount lodged.
Surety: A surety is similar to a deposit, except it is a third party rather than the accused who lodges money or property with the Court. The third party risks forfeiting the amount lodged if the accused does not appear at Court on the specified date of their hearing.
Special Conditions: The court may impose any number of special conditions that it considers appropriate to the accused and the charge (i.e. surrendering their passport, reporting to a local police station etc.)
Resources and Links
A Bail Justice is a person who can give or refuse to give a person bail while they are in police custody.
Bail justices primarily work outside business hours and on weekends to conduct hearings in relation to applications for bail or remand, and applications for interim accommodation orders relating to children. Bail Justices are volunteers. Victoria is the only Australian jurisdiction that has a bail justice system.
Justices of the Peace have the authority to grant bail under certain circumstances in Western Australia and Tasmania, and Bail Justices have the authority to grant bail under certain circumstances in Victoria.
Generally, Justices of the Peace and Bail Justices are empowered by legislation to grant bail in situations in which the court is unavailable (eg on weekends and/or in non-metropolitan areas); their purpose is to enable an accused person to have a bail hearing and minimise the time an accused person spends on custodial remand waiting for a bail hearing in front of a Magistrate.
In Western Australia, Justices of the Peace only grant bail in regional areas, there are no metropolitan-based Justices of the Peace who make bail decisions.
In Tasmania, Justices of the Peace grant or refuse bail only outside of business hours.
There are no specific qualifications required to become a Bail Justice volunteer. However, to be considered for appointment, Bail Justice volunteers must meet a number of eligibility criteria:
Be between 18 and 70 years of age;
Be an Australian citizen; and
Not be an insolvent under administration.
Applicants must also satisfy the Attorney-General that they:
Have satisfactorily completed the course of training prescribed for appointment as a Justice of the Peace;
Are fluent in English;
Ordinarily reside in Victoria; and
Are a fit and proper person to be appointed as a Bail Justice.
There is a DoJR Bail Justice Code of Conduct from 2009 - http://assets.justice.vic.gov.au/justice/resources/94fdc4fb-d815-4f62-b889-444d92bd63cb/code-of-conduct2014.pdf
VLRC Review of Bail Laws
The Victorian Law Reform Commission (VLRC) conducted a review of the Bail Act 1977 (Vic) in 2005-2006.
Some organisations heavily criticised the Bail Justice system. Some complaints included that bail justices were not adequately trained; bail justices did not always apply the Act correctly; hearings in police stations were inappropriate; and bail justices did not always act impartially. In response, bail justices who contacted the Commission said the Department of Justice had let them down when it came to training and updates on the Act and that accusations of impartiality were unfair as changes in the past few years had mostly solved that problem.
Submissions from many lawyers’ groups (including the LIV) supported the introduction of a court-based after-hours system for bail to replace the current bail justice arrangement.
The LIV issued a submission to the VLRC review, stating (no 15 at page 7):
“The LIV supports the Bail justice system as an important safeguard for accused persons who might otherwise spend considerable time in custody. However we agree with many of the criticisms in the consultation paper regarding the system. The LIV considers it appropriate that Victoria have an after-hours Court to consider bail matters (refer response to question 17). Failing an after-hours Court being established the LIV recommends that the system of Bail justices should be professionalised. Bail Justices should be required to undertake specific training and ensure that such training is updated. Bail justices should be rewarded for the function they provide and accountable for delivering impartial decisions. The LIV supports amending the Act so that Bail Justices can only remand (in custody) accused persons to the next sitting day of the court”.