Prioritize bail applications for Aboriginal and Torres Strait Islander clients

We will fund bail applications that are made on a reasonable basis under a policy change to prioritize the representation of Aboriginal and Torres Strait Islander clients on remand.

Under the new guideline, the funding criterion has changed from focusing on the likely outcome of the request to focusing on the basis of the request. Bail applications that 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 statutory provisions and case law provide a reasonable basis for an application. release on bail.

Significantly, the directive makes it clear that bail applications where the client is a child and/or Aboriginal or Torres Strait Islander will still be funded.

“Victoria Legal Aid considers that there is always a reasonable basis for making a bail application where the applicant is a child and/or an Aboriginal or Torres Strait Islander.” – Guideline 6

The change responds to ongoing concerns about the high numbers of Indigenous people in remand and recognizes our role and responsibility to develop better system responses, in full consultation with our partners and stakeholders.

Addressing Systemic Disadvantages

Changes to bail legislation in 2018 had a disproportionate impact on Aboriginal and Torres Strait Islander remand prisoners.

In June 2021, 51% of Indigenous people incarcerated in Victoria prisons were on remand, up from 32% in June 2017.

As outlined in Strategy 26 and our Reconciliation Action Plan, we are strongly committed to building culturally safe services for First Nations clients and contributing to systemic reform to address overcriminalization in our justice system. justice.

Last year, we implemented duty counsel guideline changesexternal link Prioritize bail applications in the initial remand of Aboriginal and Torres Strait Islander clients.

This latest change aligns our duty counsel and funding guidelines to address Aboriginal and Torres Strait Islander remand rates, recognizing 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 the significant contribution of the Law Institute of Victoria, as well as our Indigenous Services team.

Bail applications during the first pre-trial detention

One of the important aspects of the new guideline is that it will make it easier for practitioners to certify funding for first-time bail applications. We encourage practitioners to use the guideline for initial bail applications, particularly for children and for Aboriginal and Torres Strait Islander clients. Applying for bail on first detention avoids or minimizes time spent in detention, which is important because we know that even short periods of pretrial detention are traumatic and disruptive to the lives of people.

The new guideline reinforces the unique position of children in the criminal justice system, the harmful effects of pretrial detention and the importance of processing bail applications in a timely manner for children, the overwhelming majority of children in pre-trial detention not receiving a custodial sentence.

How can I support this change?

We encourage you to familiarize yourself with the new guideline:

Guideline 6 – bail applications Children, Magistrates’County Courts and Supreme Courts

Victoria Legal Aid (VLA) will usually give legal aid to a person who wants to go to the Children Court, Magistrates Court, County Court or Supreme Court for bail if there is a reasonable basis for the bail application.

‘Within reason base’ means that a bail application must be made, taking into account the charges, the applicant’s personal circumstances and applicable bail law. Sections 3AAAA and 3AAA are relevant to the assessment of reasonable basis, as is the question of whether a person is likely to spend more time in pretrial detention than he or she would receive as a prison sentence for the offense under -lying.

The VLA considers that there is always a reasonable basis to apply for bail where the applicant is a child and/or an Aboriginal and/or Torres Strait Islander. Practitioners should consider the applicability of the s3A Bail Act when representing Aboriginal people in bail applications, and the s3B Bail Act when representing children, in addition to all other relevant factors.

VLA the means test still applies (for adults). However, proof of eligibility under the means test is not required when assistance is requested under the Bail Guideline. A nobody nor is the associate required to provide proof of resources where the bail application is heard within seven days of the person being taken into custody or where the associate meets any of the other exemptions set out in the Lawyer’s Handbook.

The Manual for Lawyersexternal link will be updated shortly.

you have a question?

For more information on the new guideline, please contact Grants and Quality Assurance at [email protected] or 03 9269 0600.

More information

Discover our vision and our values ​​in Strategy 26external link .

Read it recent Evaluationexternal link of our reconciliation action plan.

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