Bail and the Human Rights Charter
NOTE: The law in this chapter is current as at 2 December 2024. Further changes to the bail laws are anticipated throughout 2025 (introduced by the Youth Justice Act 2024 (Vic).
Consistent with that presumption of innocence for all charged with a criminal offence in the State of Victoria and the prosecutorial onus of proof, bail ensures the individuals freedom and other human rights.
In Victoria those rights are found in the common law and the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Such human rights include:
freedom of movement;
privacy;
freedom of association;
freedom to take part in public life;
cultural rights;
children’s rights in criminal proceedings; and
fair hearings.
Because these human rights are not absolute, they do not prevent the refusal of bail when there remains an unacceptable risk the applicant will fail to appear, endanger the safety or welfare of the community or interfere with witnesses.
A fundamental requirement of human rights law and the relationship with a bail application is that the individuals surrounding circumstances must be properly considered before the severe step of depriving the accused of his or her freedom is taken.
Bail and the Human Rights Charter
Chapter: 3.6: How bail works
Contributor: Carolyn Howe, Magistrate, Magistrates’ Court of Victoria, and Natalie Heynes, Magistrate, Magistrates’ Court of Victoria
Current as of: 2 December 2024
Law Handbook Page: 185
Next Section: Duty of a bailed person
