Page 3276 - Week 11 - Wednesday, 10 November 2021
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Providers) Amendment Act 2020. This offence recognises the importance of the safety and security of frontline workers. Anyone convicted of this offence will face consequences befitting their actions.
However, there are seven major issues which I will outline, meaning the government cannot support the bill that has been proposed by Mr Hanson and the amendment that he has suggested. The reform proposed by the bill is based on a mischaracterisation of the operation and purpose of the current bail system, which, it should be understood, does not provide for automatically granting bail to individuals charged with assault of frontline community service providers. That is a really important point. It does not grant automatic bail. The amendments proposed would unreasonably restrict the rights of a person charged with this offence and potentially pave the way for miscarriages of justice, including by incentivising early guilty pleas to avoid being remanded in custody.
The Bail Act balances dual principles that help to maintain trust and effectiveness in the justice system: that an accused is innocent until proven guilty, and the need to keep the accused person and the wider community safe. The act provides the courts and police with a detailed framework to resolve potential tensions between these principles in each individual case. Importantly, the bail system is designed to protect an accused’s right to a fair trial and for the protection of the community. It is not a system of punishment. That is not the purpose of bail. The punishment comes with the sentencing process.
For these reasons, and in accordance with human rights principles, there is a presumption for most offences that an accused has a right to be granted bail. This may include conditions, unless there is a compelling reason not to. Most offences in the ACT have a presumption in favour of bail. This approach is generally consistent with the approaches in other Australian jurisdictions. The presumption of bail is only removed for the most serious types of criminal behaviour, where the sentencing options carry the most severe penalties. Importantly, contrary to Mr Hanson’s statements when he introduced this bill, the presumption for bail does not guarantee bail nor mean that offenders automatically get bail. Perhaps he is referring to the category of more minor offences under section 8 of the Bail Act, for which there is a limited entitlement to bail. Assaulting a frontline community service provider is not in that category.
Assaulting a frontline community service provider falls into the category of offences for which there is a presumption in favour of bail. It is a presumption that can be displaced by evidence and consideration by a police officer or court, and it is not the same as an entitlement. The courts and police can still refuse bail once they have considered the criteria in section 22 of the Bail Act. Whether bail is refused will depend on the circumstances of the case. There is no evidence—none—that those charged with assault of a frontline community service provider have a greater risk of reoffending or failing to appear in court such to justify the removal of the presumption for bail.
In the ACT, the offences where there is no presumption for bail—as Mr Hanson proposes in this bill—include manslaughter, aggravated robbery, intentionally
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