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Outrage after Victoria ditches plans to give children presumption of bail

Dechlan Brennan -

The Victorian government’s decision to ditch plans to give children the presumption of bail - its second backflip on youth justice reform in recent months - continues to reverberate, with the state’s peak Indigenous-controlled health body labelling the decision disappointing.

It comes after the Victorian Aboriginal Legal Service (VALS) said the U-turn, announced by Attorney-General Jaclyn Symes on Wednesday, was a “betrayal”, and questioned how Victoria could walk down a path of Treaty with a government  “so willing to walk away from their commitments”.

The Victorian Aboriginal Community Controlled Health Organisation (VACCHO) said the decision, which puts the onus on an alleged offender to prove they deserve bail rather than a prosecutor to demonstrate why they do not, along with a trial to attach electronic monitoring tags on children on bail, was “trampling over the presumption of innocence”.

“It is widely evidenced that Aboriginal children are over-represented at all levels of the justice system in Victoria, including those on bail,” VACCHO said in a statement.

“This decision only contributes to the over-policing of Aboriginal children and moves us further away from responses grounded in wellbeing and healing.” 

Minister Symes said the long-demanded reforms weren't needed, arguing “99 per cent” of children accused of crimes were already granted bail. 

“If that’s what’s happening in practice, changing it and creating concern that we are weakening bail, when it’s not necessarily the case, is not something that we need to do,” she said on Wednesday. 

The government previously committed last year to winding back the bail laws after vulnerable people were routinely incarcerated for minor crimes they had not yet been found guilty of. These were called for by coroner Simon McGregor in the wake of the death in custody of Indigenous woman Veronica Nelson. 

He said the laws discriminate against Aboriginal people, are incompatible with Victoria's Human Rights Charter, and should be changed urgently.

The new laws in their original form would introduce a presumption of bail for children in any crime - bar homicide and terrorism offences - and had enough numbers on the cross-bench to pass parliament. 

VACCHO chief executive Jill Gallagher 

However, they were delayed last year, with the government forced to deny they were planning on scrapping the reforms. Minister Symes said at the time her decision was influenced by “public perceptions of a youth crime crisis”.

“This is not a backflip, this is just a pause,” she said. 

VACCHO said real change for Aboriginal children promoted community safety and came by moving away from “tertiary end, crisis-driven responses”.

“Instead, government’s focus must be on upstream approaches that advance the human and cultural rights and social and emotional wellbeing of families, beginning from a foundation of strength and prevention.”

VACCHO chief executive Jill Gallagher said the focus should be on keeping families together, and safe and strong in Culture. 

“Aboriginal families also have the right to participate in – and have control over – decisions that affect our children and our lives,” she said. “Instead of backflipping on promises to Community, we need a government that is committed to breaking the cycle of trauma and disadvantage.” 

Executive director of VACCHO's Balit Durn Durn Centre, Sheree Lowe, agreed, arguing the decision was not beneficial to children, families or Community. 

“This is an outdated approach which does not align to a rights or best practice approach,” she said. 

Human Rights Law Centre managing lawyer Monique Hurley said the decision to backtrack on promises was gutless and would harm “generations of Victorian children”. 

“Victoria’s bail laws have been a disaster for children and will continue to cause needless harm,” she said. 

“While shackling children with electronic monitoring devices might score cheap political points, they don't prevent crime. All the intrusive technology will do is expand the walls of youth prisons into children’s homes and communities further stigmatising children and setting them up to fail.”

Other legal groups, including Victoria Legal Aid, the Australian Lawyers Alliance and the Law Institute of Victoria, all stated their opposition to the government’s decision on Wednesday. 

The Victorian government has previously denied claims it is looking to abandon raising the age of criminal responsibility, in the wake of criticism from the opposition and police union concerning youth crime.

Currently the age is set to be raised to 12 years-of-age by mid-2025, and to 14 by the end of 2027.

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