We will fund bail applications that are made on a reasonable basis under a guideline change aimed at prioritising the representation of Aboriginal and Torres Strait Islander clients on remand.
Under the new guideline, the test for funding has shifted from a focus on the likely outcome of the application to a focus on the basis for the application. Bail applications which are made on a reasonable basis will be funded (as long as the client meets our means test), and practitioners are encouraged to consider how relevant legislative provisions and case law provide a reasonable basis for an application for bail.
Significantly, the guideline makes clear that bail applications where the client is a child and/or an Aboriginal or Torres Strait Islander person will always be funded.
‘Victoria Legal Aid considers there is always a reasonable basis to make a bail application where the applicant is a child and/or an Aboriginal or Torres Strait Islander person.’ – Guideline 6
The change responds to ongoing concern about the high numbers of Aboriginal people on remand and acknowledges our role and responsibility to build better system responses, in full consultation with our partners and stakeholders.
Addressing systemic disadvantage
Bail legislation changes made in 2018 have had a starkly disproportionate impact on Aboriginal and Torres Strait Islander people on remand.
In June 2021, 51 per cent of Aboriginal people in Victorian prisons were on remand, compared to 32 per cent in June 2017.
As outlined in Strategy 26 and our Reconciliation Action Plan, we have a strong commitment to building culturally safe services for First Nations clients and contributing to systemic reform to address overcriminalisation in our justice system.
Last year we implemented similar duty lawyer guideline to prioritise the making of bail applications at first remand of Aboriginal and Torres Strait Islander clients.
This latest change aligns our duty lawyer and funding guidelines to address the remand rates of Aboriginal and Torres Strait Islander people, recognising the role we play in supporting represented bail applications.
In reviewing the bail guidelines, we are grateful for the leadership of the Victorian Aboriginal Legal Service and for important input from the Law Institute of Victoria, as well as our Aboriginal Services team.
Bail applications at first remand
One of the important aspects of the new guideline is that it will make it easier for practitioners to certify funding for first remand bail applications. We encourage practitioners to use the guideline for first remand bail applications, particularly for children and for Aboriginal and Torres Strait Islander clients. Making a represented bail application at first remand helps to avoid or minimise time spent in custody, which is important because we know even short periods on remand are traumatic and disruptive to people’s lives.
The new guideline reinforces the unique position of children in the criminal justice system, the damaging effects of remand and the importance of running timely bail applications for children, with the overwhelming majority of children on remand not receiving a custodial sentence.
How can I support this change?
We encourage you to familiarise yourself with the new guideline:
Guideline 6 – bail applications in the Children’s, Magistrates’, County and Supreme Courts
Victoria Legal Aid (VLA) will generally make a grant of legal assistance to a person who wants to apply to the Children’s Court, Magistrates Court, County Court or Supreme Court for bail if there is a reasonable basis for the bail application.
‘Reasonable basis’ means that a bail application should be made, taking into account the charges, the personal circumstances of the applicant, and relevant bail law. Section 3AAAA and 3AAA are relevant to the assessment of reasonable basis, as is the question of whether a person is likely to spend longer on remand than they would receive as a sentence of imprisonment for the underlying offending.
VLA considers there is always a reasonable basis to make a bail application where the applicant is a child and/or an Aboriginal and/or Torres Strait Islander person. Practitioners must consider the applicability of s3A Bail Act when representing Aboriginal people in applications for bail, and s3B Bail Act when representing children, in addition to all other relevant factors.
VLA’s means test still applies (to adults). However, proof of eligibility under the means test is not required where assistance is sought under the bail guideline. A person’s partner is also not required to provide proof of means where the bail application will be heard within seven days of the person being taken into custody or if the partner meets one of the other exemptions set out in the Handbook for Lawyers.
Download the worksheets:
The Handbook for will be updated shortly.
Got a question?
For more information about the new guideline, please contact Grants and Quality Assurance at email@example.com or 03 9269 0600.
Read about our vision and values in Strategy .
Read the recent of our Reconciliation Action Plan.
Reviewed 22 July 2022