Page 450 - Week 02 - Thursday, 14 May 1992
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likelihood of the person harassing other persons, which again is a relevant factor; thirdly, and it is subparagraph 22(1)(c)(ii) that is relevant here, the likelihood of a person committing an offence while released on bail. Paragraph 22(1)(c) is expanded by subclause 22(2), which says that a reference to committing an offence is to be interpreted broadly. It refers to offences against a law in the Territory, a law of the Commonwealth or a law of another State or Territory, and that is deliberately done.
In particular, Mr Humphries mentioned that perhaps we are talking about domestic violence. Obviously, one would want to be very careful about a person who has a record of repeat offences or of committing offences while on bail; that should be taken into account against them in the bail decision. We are broadening this here to say that you can look at their record or likelihood of committing offences anywhere in Australia, not just in the ACT. That is a more powerful provision than the equivalent New South Wales legislation.
The equivalent New South Wales legislation, the Bail Act of 1978, again sets the criteria for bail, and again sets out one of the criteria as being the protection of the community, one of the subcriteria being the likelihood that a person will commit an offence while at liberty on bail. That is in subsection 32(1). But the New South Wales legislation then goes on to limit the type of offences that you can have relation to, and it is essentially offences that are likely to be of a sexual or violent nature, where the likely effect of the offences on the victim of the original offence may be relevant, and whether there is likely to be a large number of offences committed. So, the New South Wales legislation is really saying that the likelihood of committing a further offence is not to be considered a criterion unless we are talking about sexual or violent offences, unless we are talking about offences against a specific victim, or unless we are talking about repeat offences.
In the ACT we are saying that the likelihood of a person committing any offence whilst released on bail is a relevant factor, and obviously the prosecutor will say to the court, to a magistrate, "This person, we believe, is likely to commit offences while on bail; the evidence for that is that the offence in respect of which they are currently making an application was committed when they were on bail". So, the decision maker would have before him the fact that the accused has committed the current offence while on bail, and the prosecutor would say, "We think that goes to show that the community should be protected, and in this case bail should not be granted".
It must be conceded that what Mr Humphries is proposing is pulling back fairly dramatically from Mr Stefaniak's original proposal. Mr Stefaniak's original proposal was that you could never get bail if an offence was committed while you were on bail. Mr Humphries is retreating from that, but he is saying that it is a presumption that you should not get bail if the offence with which you are charged was committed when you were on bail. I think that presumption is unnecessary. We are getting reverse presumptions in a Bill that itself is creating a presumption. As Mr Humphries stated, and as I endorsed in my summing-up remarks, this Bill is not so much about a presumption in favour of bail as about a presumption that the case against every individual be carefully considered, having regard to a set of criteria, and that you are entitled to be released unless a decision maker, looking at the relevant criteria, can make a case against you.
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