Page 3644 - Week 12 - Wednesday, 20 October 1993
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Madam Speaker, it was the intention of the Opposition, particularly in moving the Bail (Amendment) Bill, that we put this question of the grant of bail on a higher plane and show that the community wants to be tougher on people who are alleged to have reoffended against the laws of the Territory. It is not our intention to deny bail in those circumstances in any situation and I think, with respect, that it is difficult to accept the proposition of the Attorney-General that our position of asking judges to take into account previous offences is somehow tougher than the position in New South Wales. In New South Wales the position quite clearly is that a person is not entitled to bail for a second offence unless exceptional circumstances exist justifying the grant of that bail. It has not, to my knowledge, caused massive problems, massive infringements of civil liberties in New South Wales. This old argument about attuning ourselves to national standards comes up again. It seems to me appropriate that we should accept the better standard of New South Wales. It does seem to me to be a tougher and more appropriate standard.
I must say that I was gratified to hear the Attorney-General say that the Government is vigilant about the question of what might be perceived to be excessive leniency and, if necessary, will take appeals to the Supreme Court on the basis of excessive leniency by a lower court. I believe that it would be helpful in this debate, certainly in the handling of this issue in the community, if the Director of Public Prosecutions and the Government's policy were to reflect the desire of the community to see a fairly stringent position taken by courts in these circumstances.
It is possible to argue, Madam Speaker, that, although we should give members of the community who appear before the courts the benefit of the doubt about whether they have committed offences, there is also an argument that says that where people are potential offenders against, particularly, domestic violence orders - that is, where potential harm, sometimes very serious harm, might flow from a person being at liberty - there is a strong case for saying that the courts should sometimes err in favour of protection of victims. I believe that we have a very strong question here about whose rights are more important - those of a person accused of an offence, a violent offence, or those of a person who might be a potential further victim of violent offences. I believe, in other words, that the rights of victims ought to be focused on much more extensively than has been the case up until now. I would have hoped that the tabling of the report of the Community Law Reform Committee on victims' rights would have helped us to do that to a somewhat greater extent.
Both Mr Moore and Ms Szuty focused on the question of a person being innocent until proven guilty. I think, with great respect, that they have missed the point. Of course a person is innocent of a charge until proven guilty; but there are countless thousands of cases where people who are subsequently proven to be innocent are quite justifiably denied their liberty, not given bail, because the court perceives that a particularly serious offence needs to be dealt with by deprivation of liberty until the question of their innocence is actually resolved. I would argue that the right to a trial, the right to be heard in court, the right to argue a person's case, the right to all the protections that the law affords, are indeed rights; but I would also argue that bail in many respects can be viewed as a privilege. The community has every right to regulate the circumstances in which an accused person, a person who has been duly brought before the courts accused of an offence, might be granted the privilege of bail. That is the position of the law.
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