The impact on our clients of changes in bail laws

Published:: Friday, 1 August 2025 at 3:14 pm

Key points

Changes to bail laws mean that more people will spend time in custody waiting for their case to go to court, even when they are unlikely to get a prison sentence.
We are seeing early signs that the impact of recent bail changes go further than addressing high-harm, repeat and serious offending, and are disproportionately affecting people experiencing homelessness, people with a disability and First Nations people.
We provide services every day to the most marginalised Victorians, including those facing remand, in courts across the state. Our experience is that marginalised people are disproportionately represented among people facing remand.

The government has introduced a bill with further amendments to Victoria’s bail laws – the second set of major changes this year.

The Bail Further Amendment Bill 2025 proposes two specific changes that will make it harder to get bail:

The introduction of an ‘uplift’ provision for certain types of offending: This will mean that a person who is alleged to have committed an indictable offence while on bail for another indictable offence will face a presumption against bail, unless an exception applies. They will be refused bail unless they can demonstrate ‘compelling reasons’.
The introduction of a new ‘high degree of probability’ test: This will apply where a person is alleged to have committed an offence of carjacking, home invasion, armed robbery or aggravated burglary while on bail for any of those offences. To be granted bail in these circumstances, a decision-maker has to be satisfied that ‘there is a high degree of probability that the accused would not commit’ one of those offences if they were released on bail.

The new Bill also includes important recognition of the need to consider pregnancy and care-giving responsibilities when deciding bail applications. This is an important and welcome change which we support.

The Bill ‘carves out’ some less serious offences from the uplift provisions, including low level theft and criminal damage and possession of drugs under a certain threshold. We support this, however even with these limitations the uplift will apply to more people than the group of repeat, serious ‘high-harm’ offenders the government was targeting.

This is because of the wide range of offences that are deemed ‘indictable’. For example, a person who is alleged to have broken into and stolen from an unattended warehouse while on bail for growing cannabis plants will face the same test for bail as someone who is alleged to have committed offences like manslaughter, stalking or kidnapping.

The new ‘high degree of probability’ test also captures a broad range of conduct and reduces judicial officers’ ability to decide whether remand is the best option.

How this will impact our clients

We recognise the importance of ensuring community safety, however the new laws are highly complex. In our experience this will likely result in more people being remanded, particularly by police and bail justices, even in circumstances where they are unlikely to receive a prison sentence.

These changes, combined with the changes made earlier this year, make it more likely that some people who need help with housing, disability support, mental health support, or support to stay engaged at school or in employment, will spend time on remand.

The proposed laws will also likely increase the number of First Nations people in prisons and police cells in Victoria. The Yoorrook Justice Commission heard evidence about how laws of this nature harm First Nations people and increase the risk of deaths in custody.

‘If they are passed, these new laws will mean that some people who require support will instead spend time in custody,’ said Criminal Law Executive Director Kate Bundrock.

‘Even short periods in custody are traumatic and disrupt people’s lives. Being in custody makes it much harder for people to address the issues that lead to offending.’

Impacts of earlier changes to bail laws

Following the bail changes introduced in March 2025, our data shows that First Nations adults are now more likely than not to be remanded in custody when they apply for bail at the first opportunity. This is a reversal of what we have previously seen.

We have seen an increase in the number of remand services we are providing for people with a disability or mental health issue. And we are seeing that it is now more difficult for people experiencing homelessness to be granted bail.

Almost half of our remand services for children were delivered to young people with child protection involvement. This means that children with experiences of trauma, abuse and neglect are being remanded in custody instead of receiving the care and support they need.

Key terms

Bail: means that a person charged with a criminal offence is released from custody if they promise to attend Court on the next court date. People on bail may also be required to follow rules called bail conditions. These might include staying at home at certain times or reporting to a police station. People on bail are waiting for their case to be heard and have not been found guilty.

Remand: means that people who have been charged with a criminal offence are held in custody, usually in a prison or police cell, until their case is finished. People held on remand are waiting for their case to be heard and have not been found guilty.

Indictable offence: Criminal charges are classified as ‘summary offences’ or ‘indictable offences’. While indictable offences include serious offending like stalking and kidnapping, this category covers a wide range of offending, including less serious offences like shoplifting food, drug possession for personal use and damaging property.

The impact of more people on remand

Restricting access to bail increases the pressure across the criminal justice system. We are already seeing some of these impacts, including:

delays for young people on remand accessing important support programs for their health, mental health and education
rolling lockdowns at Dame Phyllis Frost Centre, limiting access for women in prison to phone calls, legal and medical appointments and visits with children and family
people being held in police cells overnight because there is not enough court time to hear their case and people spending extended periods in police cells after remand
delays in accessing mental health care and assessments for people facing remand

Complexity of bail legislation

In the 12 months from March 2024 to March 2025, bail laws in Victoria were changed four times – on average, once every three months. On each occasion there have been changes to the legal tests and the way bail decisions are made. We are now looking at further changes this year and next year.

These constant changes are making the law much more complex and difficult to apply.

We will continue to work constructively with the government and our sector colleagues to monitor the impact of these changes.

A snapshot of our service data

Since the March 2025 bail changes, our service data suggests that it has become more difficult for First Nations adults and people experiencing homelessness to be granted bail:

In the past three months, First Nations adults were granted bail in only 47 per cent of the first bail applications run by VLA’s remand service. This has reduced from 56 per cent in the previous 12 months.
By comparison, non-First Nations people were granted bail in 51 per cent of first instance bail applications run by VLA’s remand service over the same 3-month period, and in 54 per cent of first bail applications made in the previous 12 months.
People experiencing homelessness were only granted bail in 38 per cent of the first bail applications made – a reduction of 10 per cent during the last three months.

The services we provide to people who are facing remand demonstrate that those with experiences of trauma, unmet mental health and disability needs and insecure housing are affected by further restrictions to bail:

19 per cent of VLA’s remand services were delivered to First Nations people.
56 per cent of our adult remand services were for adults who told us about a disability or mental health issue and 38 per cent of our children’s remand services were for children who told us about a disability or mental health issue.
31 per cent of our services to adults and 11 per cent to children went to people experiencing or at risk of homelessness

45 per cent of services delivered to children were received by a child with child protection involvement.

More information

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