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Legislative Assembly for the ACT: 2012 Week 7 Hansard (6 June) . . Page.. 2769..

Bail Amendment Bill 2012

Debate resumed from 9 May 2012, on motion by Ms Hunter:

That this bill be agreed to in principle.

MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services and Minister for the Environment and Sustainable Development) (5.38): The government will not be supporting this bill. Currently, a police officer may arrest a person, including a young person, without a warrant where the police officer believes on reasonable grounds that the person has failed to comply with a bail condition or will not comply with a bail condition. Once arrested, the person must be brought before the court as soon as practicable. The court may then deal with the person according to the requirements in the Bail Act.

What Ms Hunter's bill seeks to do is to amend the Bail Act to place additional requirements on police officers when they are exercising their discretion and deciding whether to arrest a child, including a young person, for breach of a bail condition. The bill provides that in these circumstances, the officer may only arrest the child if the officer believes on reasonable grounds that the arrest is in the best interests of the child and in accordance with the youth justice principles in the Children and Young People Act 2008.

The bill also provides that if a police officer does not believe on reasonable grounds the arrest is in the best interests of the child and in accordance with the youth justice principles, they may refer the child to any relevant service such as the after-hours bail support service. The explanatory statement states:

The bill seeks to provide for greater use of diversionary pathways for children and to prevent unnecessary contact with the criminal justice system.

The government is not supporting this bill because it will not achieve these aims. If anything, the amendments proposed by the bill will create confusion and uncertainty around the application and enforcement of bail laws as they relate to children and young people. The Bail Act already requires the court and police to consider the best interests of the child or young person in granting bail.

The Bail Act governs the decision-making process police must adhere to when considering whether or not to release a young person from police custody. The options available to police on arrest in the first instance are to release the young person from police custody on unconditional bail, with an undertaking to appear at court; release the young person from police custody on bail with conditions; or detain the young person in police custody by refusing bail.

Exercising this last option requires the police to transport the young person to the ACT Children's Court for the bail decision to be reviewed by a magistrate. The Bail Act requires the court or authorised person to have regard to the youth justice principles set out in section 94 of the Children and Young People Act, both when deciding whether to grant bail and when setting conditions of bail.

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