Page 447 - Week 02 - Thursday, 14 May 1992
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I note that Mr Humphries is not seeking an amendment of it but was drawing it to our attention. I would say yes, that we should have our attention drawn to that, we should keep an eye on it, and if there is any reason to believe that AFP officers are abusing that - there is no reason to believe that they would - if there are complaints, it would be something that the Assembly would look at and would question the need to continue. As at present advised, it is a taking up of an emergency rule in the New South Wales Act, but toughening it by requiring the officer to record the reasons, and it would be likely to be used only in very exceptional circumstances.
Mr Humphries referred further in his remarks to the position in Part VI, the appeals provision. He noted that in Division 1 of Part VI it, in effect, only allows conditions to be pulled back, whereas in Division 2 a tougher requirement can be imposed. I think there is a sensible reason for that. Division 1 is talking about review by authorised officers, so we are talking about police bail imposed by a police officer and able to be varied by a more senior police officer. I think it is appropriate that there be that fairly instant power to seek a review by another officer who is in the station, who is just around the corridor, and that a more senior officer may well ease the bail.
It is significant that the review right here extends not just to the accused, the person on bail, but to the Crown. If the informant, the police or the Crown feel that there is a need to toughen up bail, they can appeal. The scheme of the Act is that, if the original police bail is considered to be inappropriate, the informant, the police, at least the arresting officer, or the DPP representing the Crown, has to go before a magistrate to get the tougher condition. I think that is a sensible civil liberties approach; to say that, if you are wanting to toughen up on a police decision to not impose bail or not impose bail with onerous enough conditions, that ought to be a matter for a magistrate, not a more senior police officer.
There is always a duty magistrate on duty within the ACT on 24-hour call, available either in chambers or at night at home. The police officer who makes the original bail decision would know all the police case and would be expected to be cautious about releasing a person into the community, knowing the police case against them; but, if they did, and more senior police thought this was a risk to the community, you could get before a magistrate very swiftly as magistrates are on 24-hour call. I think that is a sensible civil liberties approach - to leave that discretion to the court rather than a more senior police officer. Again, it is a matter that Mr Humphries was not moving an amendment on at this stage but drew to our attention.
That is essentially our rationale and there is, we say, the power, perhaps, to rearrest. Again, let us keep an eye on this. If we seem to have any abuse or if we seem to have any problem for police officers - I guess that there is a potential problem there if people are getting out into the community and re-offending because there is some clumsiness or because of the lack of power in the police at a more senior level to increase bail - we will look at it again. The present view of the Government is that this is a sensible balance; to give a court the power to impose tougher conditions, and the police officer the power, at first instance, to provide more generous conditions, if you like, but not to impose tougher bail.
Mr Humphries was questioning whether, through the consequential provisions, we were abolishing entirely the concept of citizen's arrest. While that is an ancient remedy which I think has relevance to the modern law - it certainly horrifies me to think that citizens might get enthusiastic about the concept of
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