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Legislative Assembly for the ACT: 2003 Week 14 Hansard (9 December) . . Page.. 4978 ..

MS DUNDAS (continuing):

fears are often very well founded and are worth considering when decisions are being made about bail.

With those concerns in mind, I await with interest the government's bail reform package. I think that there will be a need for greater consultation with stakeholders and the community and more discussion to take place before any final decision can be made about changes to our bail system.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (11.00), in reply: Mr Speaker, Australian law upholds the tenet that a person is innocent until proven guilty. In criminal law there is a natural tension between the presumption of innocence and protection of the community once a person is arrested. As a result of this longstanding tension, our legal system, which has its origins in English law, has used bail for well over 725 years.

The Statute of Westminster of 1275 was the first act to regulate bail. Prior to this historical act, bail was allowed at the discretion of the Crown's sheriffs. Monarchs, their courts, and increasingly over the years legislatures have ebbed and flowed in their policy towards bail. The fundamental question of bail faced by any law-maker is: who should be detained and who should be at liberty? We face this question again in this debate.

The fact that we are discussing bail again is both consistent with the history of bail law and in the best interests of the community. Over the centuries, law-makers have shifted between a policy that emphasises the accused's freedom from detention and a policy that emphasises the certainty of the accused appearing for trial. The law of bail is something that law-makers have examined critically over the centuries on an increasingly regular basis.

Consistent with the rich history of bail, the ACT Law Reform Commission's report on bail itself took some time to mature. The previous government referred the issue of bail to the commission in December 1997, and the commission's report was released on 13 July 2001. The commission was asked to review the Bail Act to ascertain any changes that would better suit the public interest and the interests of victims of crime. The commission was also asked to assess the success of the Bail Act and specifically review the criteria used to assess whether bail should be granted. As members would recall, I tabled the government's response to the report in June and, as discussed in the government's response, the government supports the majority of the commission's 25 recommendations.

Three principles shaped the government's response to the bail report. Firstly, the role of the legislature is to make laws for the peace, order and good governance of the territory. It is not a substitute for the court, nor can it adjudicate on criminal cases in place of the court. Secondly, bail decisions are not a test of guilt or innocence. Bail decisions are made to ensure that those accused face their trial. Thirdly, it is the responsibility of the government to govern for all. Government must calmly take into account the rights of the community, the victims and those accused of crimes on equal terms.

As the territory's Attorney-General, I am naturally inclined to be an advocate of our courts and their role. The task of the legislature regarding bail law is to provide a guide

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