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Legislative Assembly for the ACT: 2016 Week 07 Hansard (Thursday, 4 August 2016) . . Page.. 2309 ..

MR RATTENBURY (Molonglo) (11.54): I will be opposing this clause. As I outlined in my earlier remarks, I do not agree with this interpretation of how bail should be dealt with. In his remarks when closing, Mr Corbell said, “What is the alternative approach?” I think the very point is that the court will have just heard the whole discussion about whether somebody is suitable for bail or not. The prosecution will have put their case. The police evidence will have been brought. The defence will have put their case. It is upon the court to take all of that evidence into account and determine whether somebody is suitable for bail. That is a responsibility that the court faces on a regular basis, including with people who are accused at that point of having conducted some horrendous crimes. The magistrate has to weigh up all that evidence and make a decision whether it is suitable to release somebody on bail or not.

The approach being put forward today assumes that within two hours prosecutors will know better than the judge or the magistrate, who has just weighed up all the evidence, and that, somehow, within that two-hour time frame, they believe that there is now something they did not present, I presume. Does it presume additional evidence that was not presented in the immediately preceding bail hearing? Presumably not, because you are highly unlikely to have new evidence within two hours. What it actually points to is that this is simply saying that prosecutors can now decide that they know better than the judicial official who has just made the decision. That is the very essence of why I am opposed to this proposition. I cannot support that position.

The reason I voted against the bill in principle was that this provision and some of the other provisions remain. I do not think they are justifiable and I do not think they stack up very well. It was troubling to vote against the bill in principle because, as I outlined in my earlier remarks, there are some good elements in there and they will go through today. But I think we could have done those elements without bringing forward some of the ones that I have concerns about. Despite the intent of the Attorney-General—and I accept his good intent on this—I think that the way the provisions are constructed is problematic, and this is one of the examples.

MR CORBELL (Molonglo—Deputy Chief Minister, Attorney-General, Minister for Health, Minister for Police and Emergency Services and Minister for the Environment and Climate Change) (11.56): The issue at play here—and it is worth reiterating it—is that it would appear that the position of Mr Rattenbury is that the decision to grant bail is always going to be right but a decision to refuse bail is potentially subject to error and should be subject to review. That is what the law currently provides for. The law currently provides for the accused to seek review of a refusal to grant bail without any new evidence being led. That is the law currently. But why is it the case that the magistrate’s decision is infallible when it comes to the decision to grant bail but not infallible and therefore subject to review because there is error if there is a refusal to grant bail?

What the government is saying is that there can be circumstances where magistrates make a mistake. And that mistake may have serious consequences for the safety of an individual or the community at large. In those circumstances—the limited and exceptional circumstances that are set out in this bill, recognising the disproportionate power that the state has in advancing a matter in the court compared to the accused—that decision can be subject to review.

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