Page 440 - Week 02 - Thursday, 14 May 1992
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"Bail" means authorisation granted to a person under this Act to be at liberty; ...
It is a comprehensive statement of what circumstances may arise whereby a person who is charged with an offence may be out of the court and out of the gaol's jurisdiction during the period that that charge is pending in the court.
The point of this Bill is to formalise - codify, if you like - the situation that a person in that condition faces in a way which simply has not been possible in the past. The law in this area is, frankly, extremely difficult to follow and very hard to trace to a single set of documents or authorities. Therefore, putting it in one place and comprehensively making this, as it were, the bible on bail is a very much appreciated and, I think, very important step.
I note, for example, in clause 57 of the Bill, that this Bill and the Bail (Consequential Amendments) Bill, which we are debating at the same time, both require that these two Acts take effect irrespective of what other provisions are made elsewhere. In other words, there is no attempt to identify all the other sources of law which are being overruled by this Bill. It would be impossible. They are too complex and too diverse to be able to do that.
Madam Speaker, I want to make a few comments on this Bill. As I have indicated, the Opposition will be supporting this Bill and the Bail (Consequential Amendments) Bill, with a couple of amendments. The significant clauses, I suppose, are clauses 7 and 8 of the Bill, which set out the circumstances under which a person is entitled to bail. For minor offences, offences punishable by a sentence of imprisonment not exceeding six months or only by payment of a fine, there is an absolute entitlement to bail. There is an entitlement to get that unless certain exceptional circumstances are established. I am referring particularly to situations where a person might be in custody for another offence and things of that kind. For other offences, more serious offences, clause 8 applies and, essentially, establishes that a person may have bail unless a court is satisfied that that would be unjustified in the circumstances.
In his presentation speech the Minister said that what this effectively amounted to was a statutory presumption in favour of bail unless the prosecutor establishes a convincing case for why bail should not be granted. With respect to that statement, I do not think I would go as far as the Attorney in saying that that has actually been established. I think that what we have here is a presumption of only the flimsiest kind; a presumption which says, in a sense, that a person is entitled to bail unless the court thinks that is not appropriate on one of the grounds, or on a number of the grounds, set out in clauses 23 and 22 of the Bill.
I think that that is not exactly a presumption with an onus of proof needed to dislodge it or discharge it. It really is a case of saying that, on the balance of probabilities kind of argument, unless there is any clear evidence either way the person should have bail. This has been amended, I might mention, from what did exist before in the equivalent of clause 8 which caused my predecessor, Mr Stefaniak, some problems. The amendment, I think, is a good one. It does create a presumption. I think a presumption is justified.
My colleague talked at one stage about removing the presumption in the case of murder, for example. A person charged with murder, it was suggested, ought not to have a presumption in his favour that he should be out on bail. I think, on reflection, that this particular provision covers that well and I would not seek to
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