Page 5198 - Week 16 - Thursday, 28 November 1991
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have no comprehensive statutory guidelines to help them determine whether to grant or refuse bail. These criteria are found only in reported cases stretching back some 100 years.
Second, the existing law puts undue emphasis on the accused's financial means as the criterion for bail. This effectively discriminates against the poor, or those new in a community and who do not have family or friends to act as surety. Those without the necessary resources have no option but to remain in custody and suffer all the disadvantages I described earlier.
The Labor Government wishes to correct these deficiencies in the law. This Bill was developed under the previous Government. Since the change of government it has been scrutinised for compliance with this Government's policies, and a few minor amendments have been made.
The Bill consolidates the law of bail into one easily accessible Act. It will deal comprehensively with all aspects of bail. That is, in what circumstances is bail to be available? What criteria may be taken into consideration? What conditions may be attached to bail? How is bail to be enforced? When and how are bail decisions to be reviewed?
The new legislation will apply to child offenders as well as to adults and at any stage of the prosecution process up until sentencing. Few of the underlying principles in the Bill are radically new. Mostly, it re-enacts established law. Where it does make great advances is in procedures and in the emphasis placed on certain issues. One of the Government's primary objectives is to reduce reliance on money bail and to promote consideration of facts more directly relevant to the underlying purpose of bail - namely, will the accused appear in court for trial?
There are several other innovations in this Bill. First, there is to be a statutory right to unconditional bail where the offence charged is punishable by a fine only or by no more than six months' gaol. This right will not extend to offenders who have in the past breached bail, who are in some way incapacitated and consequently need physical protection or who are already serving a prison sentence after being convicted for some other offence. The reason for this provision is that it is simply not appropriate to hold someone in custody pending trial for an offence for which that person either cannot be gaoled at all or can be gaoled for only a very short time. In all other cases there will be a statutory presumption in favour of bail unless the prosecutor establishes a convincing case for why bail should not be granted.
Next, the Bill exhaustively specifies the only criteria which a court or police officer may take into account when deciding whether to grant or to refuse bail. These criteria fall into three categories - the evidence relevant
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