Our annual trip to Queenscliff is a quaint step back in time: ye olde shoppes and seaside fun from a simpler time.
There is history aplenty: a museum for the brave and uniquely talented Port Phillip pilots and a coastal defence fortification which recalls fears of invasion by Russia and the United States.
Turning to Saturday’s Age, one might have expected to be brought back from the dreamy summer haze of yesteryear to today’s world of climate crisis and debt etc.
Well, only halfway perhaps.
The lead story was of the ascension of Brad Battin to the Victorian Liberal leadership (of an all-male leadership team), with his big three promises being to slash taxes (of course), to fix potholes (so we can run more fossil-fuel cars faster) and, most heinously in my view, to “toughen bail laws” yet again (so we can further diminish the presumption of innocence).
I checked the date on the paper, thinking I might have slipped back somewhere into the premiership of Sir Henry Bolte (1955-1972).
But no, it was 2024 with the sales pitch for Battin appearing to include the notion that he’s a knockabout who left school at 15. In the description of The Age’s Chip Le Grand, “He is a non-religious, tattooed, outer-suburban bloke who has built his political convictions on the job.”
Reportedly, he is in favour of raising the age of criminal responsibility, which only makes his pledge to toughen bail laws the more incongruous to my mind.
On one hand, he seems to say that kids don’t know what they are doing when they actually commit crime and so should be cut some slack, but on the other, that we should lock them up on suspicion of maybe having done something when they are only accused.
The Age assured us in its page 1 lead that Battin had “stressed his law-and-order credentials” in a first-day pitch “aimed squarely at outer suburban voters”.
Is there a danger that voters, from whatever location, will only be confused by Battin, muddying what should be a gulf between bail and sentencing?
The view that “they [anyone charged by police] are all guilty anyway” seems increasingly prevalent. Battin’s pronouncement will do nothing to illuminate the important distinction. Indeed, it seems distinctly Bolte-esque to me, notwithstanding that the new Liberal leader wasn’t born when Bolte was Premier.
Bail is different, and bail is important.
It is not sentencing.
Too few voters seem to grasp that sentencing comes after a plea of guilty, or after a finding of guilt at a hearing.
Bail is all about ensuring that hearings are fair.
Sometimes that will require that an accused be held in custody, but those instances should be rare.
An accused has the presumption of innocence, not just up to hearing, but throughout it, right up until the end of the evidence.
The citizen should be detained only when absolutely necessary.
Bail laws have been ramped up already in most Australian jurisdictions over recent years.
In Victoria, the mere presence of Sections numbered 3AAA and 4AAA in the Bail Act show how much it has been tinkered with.
The amendments have been aimed at making bail tougher, with legislative restrictions making certain categories of alleged offending subject to an “exceptional-circumstances” test. Other jurisdictions use “special and exceptional”.
Higher bars apply if an accused is on parole, has had a previous matter or is alleged to have a terrorism record.
How much more toughening do we need? None, in my view. Not when you have a competent judiciary, still vested with some discretion, and best placed to look at each case, impartially, on its merits.
Comments like Battin’s are a concern. While detail-free at this stage, his plans sound ominous, and Victorian voters should be on their guard.
The major bail considerations are simple and long-standing.
Is there a risk of re-offending?
Is there a flight risk?
Is there a risk of interference with witnesses or evidence?
Maybe Battin could study Section 1B of his state’s Bail Act before holding forth again
It provides that “the Parliament recognises the importance of:
- “(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
- “(b) taking account of the presumption of innocence and the right to liberty; and
- “(c) promoting fairness, transparency and consistency in bail decision making; and
- “(d) promoting public understanding of bail practices and procedures.”
Andrew Fraser is the principal of Fraser Criminal Law and has worked in criminal law in the Canberra region for more than 15 years. Before beginning legal practice, Andrew was a journalist for close to 30 years with the Canberra Times and the Sydney Morning Herald, including stints in the Federal Parliamentary Press Gallery. He is also a former news editor, chief of staff and political correspondent of the Canberra Times.
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