COVID-19 and bail
Who must consider rights?
Under the Human Rights Act 2019, Queensland public entities must respect human rights in their actions and decisions, and give proper consideration to human rights when making a decision.
In relation to decisions about granting a person bail, these include:
- Queensland Police Service and employees, including police officers and police prosecutors;
- Director of Public Prosecution and staff prosecutors, in particular how they will approach applications for bail taking into account the rights of all individuals involved including the accused.
- Registry staff of the Queensland Courts, including the Magistrates Court;
- Legal Aid Queensland and employees, including private lawyers who have been funded by Legal Aid to provide legal assistance.
Generally police and courts can grant bail, although under s 13 of the Bail Act 1980 only the Supreme Court may grant bail for persons charged with certain offences. There are different considerations for bail depending on age, nature of offence and whether bail has already been refused by a court.
Police have power to grant bail under s 7 of the Bail Act, but not in relation to serious offences. If it is not practicable to bring a defendant before a Magistrates Court within 24 hours of arrest, the presumption is that bail will be granted.
Individuals who have rights
Many individuals in the system have rights that must be considered by Queensland public entities in granting bail including:
- Corrections staff;
- Those arrested and detained;
- Their visitors (such as lawyers, health workers and non-government representatives);
- Those that may be at risk from a released person, including in relation to domestic and family violence.
The right to safety for the broader community is also a relevant factor (reflected in the right to liberty and security of the person).
Under s 32 of the Human Rights Act (rights in criminal proceedings), those charged with criminal offences, including those held in quarantine, have the right to have adequate time and facilities to prepare the person’s defence and to communicate with a lawyer or advisor chosen by the person.
How might rights be considered?
The Human Rights Act may apply to considerations of bail in a number of ways:
- Obligation on public entities - police considering bail must act and make decisions compatibly with human rights, including giving proper consideration to human rights in decision making (see s 58). This is usually considered as part of a ‘piggy back’ action under s 59, or a complaint to the Queensland Human Rights Commission under Part 4.
- Interpretation - Courts must interpret all statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights (s 48).
- Application to Courts - Under s 5, the HR Act also applies to a court, to the extent the court or tribunal has functions under Part 2 of the Act.
In Application for Bail by HL  VSC 750, the Victorian Supreme Court found that as there was no ambiguity concerning the relevant sections of the Bail Act, the interpretation requirement did not arise. However, the Court found it was obliged to directly apply the Act to its own functions, and so considered the conditions of detention, against relevant human rights, if the applicant remained in custody.
Examples of human rights arguments
The Judicial College of Victoria has a regularly updated page on COVID jurisprudence, including on bail.
Human rights (and related arguments) have been made to apply for bail based on COVID-19 in Queensland, Victoria and the ACT. These include where changes to legal systems and prison environments as a result of COVID 19, have been relevant to the accused satisfying a preliminary requirement to: demonstrate a ‘material change in circumstances’, or ‘shown cause’, or prove ‘exceptional circumstances’. These include the Queensland Supreme Court decisions in Re JMT  QSC 72, Lynch v Director of Public Prosecutions (No 2)  QSC 64, the ACT Supreme Court decision in R v Stott, and the Victorian matter of Application for Bail by Broes. Although human rights were only referred to explicitly in Re JMT, the applicant in Stott cited the recent open letter from lawyers and legal academics about COVID to support her application for bail. The courts in these matters referred to issues relevant to rights in granting bail:
- Delay (right to trial without unreasonable delay);
- Need to see family and other social interaction (right to family and freedom of association);
- Risk to health through infection in prison (right to life, right to privacy, right to health);
- Treatment in prison being significantly changed/worse due to isolation, less activities, etc. (humane treatment in detention).
Under s 16(3) of the Queensland Bail Act, where a defendant is charged with certain offences (including indictable offences involving a firearm), the defendant must ‘show cause’ as to why they should be granted bail. This effective shifts the usual presumption in favour of bail and the accused bears the onus of ‘showing cause’ as to why their detention in custody is not justified, which in practice requires them to satisfy the court that they are not an ‘unacceptable risk’.
In Re JMT, which arose from a charge of murder, the court considered interstate bail applications applying COVID-19 but noted that ‘there are limitations though upon the impact of COVID-19 considerations upon an application for bail in Queensland’. The Court considered the specific evidentiary requirements for matters to be considered under s 16 of the Bail Act including that ‘the pandemic and any government’s response to it can only be factors to take into account in the broader consideration of the exercise of discretion’. Further, ‘whatever evidence is presented as to the pandemic and governments’ response to it, s 16(1) prohibits the grant of bail where any one of the s 16(1) risks is “unacceptable”’. The court noted that ‘any consideration of the conditions on remand must be made in the context of the Chief Executive’s primary responsibility for the welfare of prisoners.’ Therefore, while HRA arguments had not been made by the parties, the Court hinted that the obligations on the executive under the HRA may be relevant to future applications at :
…the Act primarily casts obligations upon the executive and the parliament and only impacts the exercise of judicial power in limited ways. Obligations under the Human Rights Act may fall upon the Chief Executive. Whether any alleged failure by the Chief Executive to honour his obligations under the Human Rights Act (which is not alleged here) is a matter relevant to bail is a matter that need not be considered on this application.
In Lynch v Director of Public Prosecutions (No 2), the Queensland Supreme Court considered a second application for bail arising from the COVID-19 crisis in circumstances where the accused also had to show cause. The Court first had to be satisfied that the applicant had demonstrated a material change in circumstances for the Court to hear the second application. The Court noted that since the first application the pandemic caused jury trials to be delisted, there was now no estimate of when trial dates could be made, and this would create further backlog and delay. The Court found that these changes were sufficient for the accused to show a material change, particularly the uncertainty about the likelihood of the accused spending more time on remand than under any subsequent sentence. Nonetheless, the Court ultimately found that notwithstanding that the accused would spend longer on remand as a result of the delay, the applicant’s criminal history and repeated failure to comply with the requirements of bail and other similar orders meant the accused had not shown cause for bail under s 16(3).
The Court cited the recent decision of the Victorian Supreme Court in Re Tong  VSC 141, which considered what constituted ‘exceptional circumstances” for the purposes of the Victorian law. The Victorian Supreme Court stressed that while a relevant consideration, the COVID-19 epidemic will not ‘in every case be a matter which will lead to satisfaction in the mind of a judge or magistrate of the existence of exceptional circumstances, less still that it will necessarily lead to a grant of bail’. In that vein, the Court in Lynch v DPP (2), also noted the recent decisions in Application for Bail by Broes, and R v Stott, but cautioned these were decided on their own facts.
In Application for Bail by Broes, as the accused was alleged to have committed a ‘schedule 2’ offence while on remand for an earlier such offence, she had the burden of proving exceptional circumstances to justify release on bail. The Court considered the relevant criteria under the Victorian Bail Act for exceptional circumstances, and the Court’s earlier finding that ‘that the availability of treatment and support services in the community is of some weight in determining whether exceptional circumstances have been made out’. The Court also noted that the risk that the period of remand was likely to be longer than a later sentence was also a significant factor in the particular matter. Yet, specifically, the impact of COVID-19 was noted by the Court to be so profound so as to affect the ordinary assessment of ‘exceptional circumstances’:
42 …. It seemed to me that were this in an ordinary application, there was an argument to be put that the applicant did not establish exceptional circumstances. However, this is not an ordinary application in an ordinary time…
46… Given the extraordinary circumstances in which we now find ourselves, I have come to the conclusion that an already significant delay will be likely exacerbated by the consequences of COVID-19, and I am therefore satisfied that exceptional circumstances have been established
In Re Young QSC 75, the Supreme Court determined that the applicant’s health coupled with the risk of COVID-19 was not sufficient to constitute exceptional circumstances, in in the context of bail pending an appeal. This was largely due to the mitigation and lockdown measures put in place by Corrective Services.
However, in the ACT matter of R v Stott, the defendant submitted as evidence the ACT corrections’ decision to cease face to face visits. That was found to be the changed circumstances allowing the court to reconsider the application for bail.
In Woods v DPP  VSC 1 Justice Bell of the Victorian Supreme Court cited his previous discussion of rights limited through detention in Kracke considered similar provisions in the Victorian Bail Act requiring that bail be refused ‘unless the applicant shows cause why his detention in custody is not justified’. However, although His Honour did not cite the interpretative obligation as applying, he found the provision still required the prosecution to bear the onus of establishing that there was an unacceptable risk to the satisfaction of the Court. Consistent with the presumption of innocence, if ‘unacceptable risk’ could not be demonstrated by the prosecution, ‘cause’ for the grant of bail will be shown in the accused’s favour.
Right to liberty and security
The right to liberty and security (s 29) is always engaged by decisions about remanding a person in custody. As Justice Penfold noted in Re application for Bail by Isa Islam, the purposes of the Bail Act are to balance the rights of the accused with those of the community, particularly victims.
The purpose of that Act as a whole appears to be to balance the need to ensure that accused persons turn up for their trials, the need to protect the community and the administration of justice, and the need to protect the right to liberty of persons who are presumed to be innocent.
Right to be tried without unreasonable delay
Delay arising from COVID-19 was a key factor in considered in Lynch v Director of Public Prosecution and the Victorian case of Application for Bail by Broes. In the earlier case of Gray v DPP  VSC 4 the Victorian Supreme Court considered human rights arguments in granting bail on the basis that the accused had spent too much time in remand pending trial, particularly where the length of remand may be longer than the subsequent sentence. At , Bongiorno J said:
That a person may serve more time on remand than his ultimate sentence is a significant matter on any consideration of bail at common law. It is of even greater significance now in light of the existence of the Charter and the provisions to which I have referred. If the Charter in fact guarantees a timely trial, the inability of the Crown to provide that trial as required by the Charter must have an effect on the question of bail. It would be difficult to argue that a trial which may well be not held until after the applicant had spent more time in Custody than he is likely to serve upon a sentence would be a trial held within a reasonable time. The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard (or to ensure that it does not breach those obligations so as to prejudice the applicant), is to release him on bail — at least the only remedy short of a permanent stay of proceedings.
Nonetheless, in Lynch v DPP (2) the Court stressed that the Queensland Supreme Court had ‘expressly disapproved the notion that substantial delay itself establishes that pre-trial incarceration of an accused is unjustified. Unacceptable risk of flight, witness tampering or further offending do not become acceptable because the case against the accused requires a long time to get to trial. Matters that must be taken into account include the length of any delay, the reasons for that delay and the strength of the Crown case. They must be balanced to arrive at a decision as to whether bail should be granted’.
Presumption of innocence and freedom of movement
In the Victorian case of Woods v DPP, the Court noted that bail legislation must be interpreted compatibly with many rights usually including the presumption of innocence, right to liberty and freedom of movement. Other rights that may be engaged including inhuman treatment (where bail condition requires attendance at medical appointment), and cultural rights of Aboriginal and Torres Strait Islander peoples. The Court noted that human rights considerations emphasised the unique circumstances of the accused must be considered:
 … a fundamental requirement of human rights law in the context of bail is that the individual facts and circumstances must be properly considered before the severe step of depriving the accused of his or her liberty is taken.
Humane treatment and rights of the child including special protection in criminal proceedings
In Queensland, the limited capacity of youth detention centres and the likelihood that children may be remanded in the medium to long term in police watch houses is a further factor likely to be relevant to bail considerations, particularly when such facilities are unlikely to be designed with infection control and provision of ongoing health services in mind.
Similarly, Queensland prisons are in stage 3 lockdown. That means no visitors at all, including generally visits by lawyers in person. The current status of prisons can be viewed on the Queensland Corrective Services website.
The conditions of detention being inhumane due to risk of infection, reduced activities, likelihood of isolation, effect on specific defendant based on their individual circumstances (eg vulnerability). In the Victorian case of Application for Bail by Broes, which involved a relatively healthy and young defendant, it was accepted that even though COVID-19 wasn’t yet confirmed to be in Victorian prisons, this was likely and ‘once the virus is discovered in any of the Victorian prisons, there will have to be a significant lockdown for a number of reasons. The transmission between prisoners will be significant and likely to occur at a much greater rate than the transmission that is occurring in the community at present. That will result in a large number of prisoners becoming quite seriously ill, depending on their age and underlying conditions. I appreciate these are matters of speculation to a degree, but the situation is sufficiently urgent to required them to be taken into account. Further bearing in mind that the entire situation may have changed again within one or two weeks.’
Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children  VSC 796 and Certain Children (No 2) (2017) 52 VR 441 concerned the transfer of children from a youth detention centre to the Barwon adult prison. It was found that the transfer and treatment of the children engaged several rights including humane treatment in detention and rights of the child. The treatment was related to the prison not being appropriate accommodation for children.
In the related case of Application for Bail by HL  VSC 1, the Victorian Supreme Court considered the specific circumstances of one of the children, who sought bail. The Court found Charter rights were relevant to interpreting the Bail Act including the rights of the child, humane treatment in detention, ensuring an accused person is treated in a way appropriate for a person not yet convicted and a child charged with a criminal offence has the right to a procedure that takes account of his or her age. Also relevant was the desirability of promoting the child’s rehabilitation. The court noted it will generally not be in the best interests of a child deprived of liberty to be placed in an adult prison or other facility for adults.
Aboriginal and Torres Strait Islander peoples
In Victoria, the cultural rights of Aboriginal and Torres Strait Islander peoples has been found relevant to considerations of bail. In DPP v SE  VSC 13, which concerned a bail application by an Aboriginal child with an intellectual disability, Justice Bell specifically considered cultural rights (s 19 of the Charter, s 28 of the HRA) under the Victorian Charter in the context of the direct application of human rights obligations to courts (s 6 of the Charter, s 5 of the HRA). At  he said:
Section 19(2) operates with s 6(2)(b) of the Charter to supply an additional basis upon which the court should, when conducting bail hearings and determining bail applications, respect the cultural rights of Aboriginal persons.
It should be noted that this was in the context of the specific requirement in s 3A of the Victorian Bail Act that Aboriginal cultural issues be taken into account in relation to bail applications. That judgement also considered other Victorian bail matters involving Aboriginal and Torres Strait Islander peoples. For example, DPP v SL (2016) 263 A Crim R 193, in which the court also applied the right to equality.
Freedom of association and right to family
The current restrictions in prisons on face to face visits and other human contact engages freedom of association and the right to family. In Lynch v DPP (2), the Court noted that restrictions on movement in prisons are not unusual, but the COVID-19 pandemic was making the length of the change in circumstances unknown and accepted that ‘the susceptibility of a prison population to infection is generally accepted to be higher than in the ordinary population’.
Right to health services
The specific right to health services in the Queensland Human Rights Act is unique in Australian jurisdictions, and may arise in considerations of bail concerning whether, with services being stretched, a person would receive adequate health care in prison.
Resolving residual concerns
A person may feel the process of granting bail did not adequately address all their concerns, or that the process was unfair in some way.
For example, an accused person in circumstances where bail was refused by police and later granted by the court, if there were evidence to suggest police did not give proper consideration to human rights arising from circumstances created by the COVID-19 pandemic (or other relevant factors) in refusing bail.
Alternatively, a victim of crime may feel they were not kept adequately informed by authorities about bail being granted to an accused.
Depending on the circumstances, these are complaints that could potential be made to the Queensland Human Rights Commission under the Human Rights Act. The Commission can hold a conciliation conference between the parties to attempt resolution of the issues, and report publicly on matters arising from complaints.
 (2010) 175 ACTR 30 
 Her Honour was unable to interpret relevant provisions of the ACT Bail Act consistently with human rights and so issued Australia’s first declaration of incompatibility.