It is a highly contentious and emotive issue given the tragic circumstances that saw five people killed and more than 20 injured when Victorian man Dimitrious "James" Gargasoulas allegedly drove into bystanders in Melbourne’s CBD last week.

There is a lot of anger right now and people are looking for someone to blame. 

Gargasoulas was released by a Victorian bail justice despite police opposition on January 14, six days before the Bourke Street tragedy.

In Victoria right now, the focus has centred on that use of bail justices – a volunteer other than a magistrate who attends an after-hours sitting, normally at a police station, to determine whether an alleged perpetrator is to be released on bail or remanded in custody after charges have been laid.

In Tasmania, that role is filled by a Justice of the Peace, who will normally attend an out-of-hours court hearing. 

Bail laws are complicated and when determining whether an alleged offender is given bail or not. The JP must always assume the person is innocent until proven guilty, and there must be a good reason (for example, there’s an adverse risk to the public) to not grant bail.

Following the deaths in Bourke Street, a number of bail justices said they had been “hung out to dry” after being blamed for releasing Gargasoulas.

This raises the legal dilemma: are bail justices – or even Justices of the Peace as in the case in Tasmania – suitably qualified to be making such decisions?

In the case of bail justices, it is a lengthy and complicated process.

Firstly, an application is lodged with the Justice Department. There is a recruitment session and then the person has to complete a police check, an interview, a probity check and a training course before the Attorney-General recommends an appointment to the Governor in Council.

As time goes, the pendulum will undoubtedly swing our way and there will be questions raised about the use of JPs in courts in Tasmania and their suitability for making decisions surrounding bail applications.

All we can hope for is that commonsense and level heads prevail and decision aren’t made during highly emotive times such as we are currently experiencing.