Page 442 - Week 02 - Thursday, 14 May 1992
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great inhibition here on a court or a police officer in deciding whether a person who might be applying for bail would appear in a court later on to answer that charge. I think that those conditions are very wide and I am satisfied by their width.
Clause 25 talks about the conditions on which bail will be granted to adults. It sets out the sorts of conditions that might be attached to a granting of bail. Those conditions are, by subclause (3), set out in a particular order and the court or authorised officer must advert their mind to those conditions in that order. They range, in a sense, from less onerous to more onerous, and that also is an appropriate provision.
Madam Speaker, I had a more serious concern with Part VI of the Bill. It is a matter I have discussed with officers of the Attorney-General's Department but which I am still not entirely satisfied about. I have decided not to seek to amend it but merely to raise it, and I hope that the Attorney will consider this in due course. This is a complicated matter and I want to explain it as clearly as I can. Part VI talks about review of decisions. Division 1 of Part VI talks about how an authorised officer - meaning a police officer - is entitled to review a decision of another officer - a police officer again - when it comes to reviewing a person's decision to grant bail or not to grant bail, or to grant bail on conditions.
What it effectively means is that a person who has been refused bail can appeal to, for example, the sergeant of the station and say, "Look, I think I should have bail", and that person can then have his or her case reviewed by the sergeant, and the sergeant might decide, "Okay, you can have bail", notwithstanding what the other police officer has decided. The Bill says specifically, in subclause 39(1):
The power to review a decision under this Division includes a power to affirm or vary a decision or to substitute another decision.
That seems perfectly clear. This, I might mention, arises out of the Royal Commission into Aboriginal Deaths in Custody. This provides a way in which Aboriginal people in imprisonment might be able to get out of imprisonment or out of custody earlier by having a review made of their circumstances. That is very good and I think that is a worthwhile provision.
In Division 2 it talks about review of decisions by courts and the capacity of the court to review an earlier decision of, for example, an authorised officer or a lower court and to substitute some other decision for that. Here the court has the power to vary and substitute a new decision of its own for an earlier decision. But in this division we have in subclauses 45(5) and (6) the power for the court by warrant to commit the person into custody. Say, for example, that a person is out on bail on conditions. They have appealed to the court and the court says, "We consider in these circumstances that not only should we not uphold the earlier decision of the police officer or lower court; we are actually going to affirm a more onerous decision and put that person into gaol".
Mr Connolly: Or the Crown may have appealed.
MR HUMPHRIES: Or the Crown may have appealed it, indeed; and the person goes back into gaol. That might not be what you would expect normally to happen, but it could well occur; a person could go back into gaol. But that power to, in a sense, recommit a person into custody does not actually get reproduced in Division 1.
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