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Legislative Assembly for the ACT: 2004 Week 3 Hansard (11 March) . . Page.. 1132..


Bail Amendment Bill 2003

Debate resumed from 11 December 2003, on motion by Mr Stanhope:

That this bill be agreed to in principle.

MR STEFANIAK (8.03): The opposition will be supporting the Bail Amendment Bill 2003. It will also be making a number of amendments to it in line with, as close as I can approximate, the Law Reform Commission's report No 19 on bail. Mr Stanhope's bill does a number of things. The Law Reform Commission back in, I think, 1997 started looking at the Bail Act 1992. It deliberated for some time and in July 2001 introduced its report No 19. The government looked at the report and made its own recommendations, partly based on the report, in a paper issued halfway through last year. It introduced this bill late last year in the Assembly.

I will start by correcting a couple of somewhat inaccurate comments made by some commentators outside this Assembly. Firstly, my old colleague and learned friend Mr Bill Redpath, now President of the Law Society, has made a number of comments. He has sent a letter-perhaps a bit late in the piece, according to the some of the responses I have seen-to all members. He seems to be under a misapprehension in relation to bail. It is somewhat common-and I can recall earlier debates on this-for people to get confused with the presumption of innocence. The presumption of innocence applies to anyone charged with an offence: they are presumed innocent until proven guilty. That is a very different thing, however, to the question of bail, which is very much a preliminary to a substantive matter being decided. I can recall several scrutiny of bills reports which the High Court has quoted where it has noted the difference. This is something the Attorney knows as well, because he quoted from that High Court case when we had a debate on bail in 2001.

There might be several members who are a little confused about this matter. If the presumption of innocence were a cardinal rule which extended to the granting of bail, anyone who pleaded not guilty would always have to get bail no matter what the circumstances. Quite clearly, that has never been the case in the law of bail as it has evolved over the years, or even in our current statute in the Bail Act 1992.

Before 1992, I am not quite sure what statute law we had in the territory on bail. I doubt very much if we had much at all. Bail tended to be just given when you appeared in court. There were certain principles that courts would usually follow. It was a system that worked reasonably well. Obviously some errors were made. One of the main reasons for bail acts is to tighten up procedures in the granting bail. This act takes a few tentative steps in that direction, but does not go quite as far as I would like to see.

The granting of bail has been tightened around the country in recent times because of the very legitimate serious concerns in the community of people who have been granted bail going out and committing further offences. Thankfully in the ACT we have not had any cases of anyone being murdered while someone has been out on bail, but that certainly is the case in the bigger jurisdictions. Often there are some very serious concerns-often by the victims or by people giving evidence-for the safety of the community. Issues such as people perhaps absconding and re-offending are all terribly important in considering


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