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Legislative Assembly for the ACT: 2001 Week 5 Hansard (1 May) . . Page.. 1280 ..

MR STANHOPE (continuing):

It is part of the debate-it does need to be noted-that there is no common law right to bail. It is not something which we, as a part of the common law that operates here in Australia, have a right to expect. There is no common law right for bail.

The scrutiny committee quotes from a decision of the New South Wales Court of Appeal to that effect:

We are not talking about absolute rights to liberty or absolute human rights. We as a community accept that we do have a right to incarcerate people for alleged offences once a charge has been laid. I accept that that is appropriate. I accept and the Labor Party accepts that there can be limitations on the right to bail. There always have been, and it is appropriate that there are. The Bail Act contains some such limitations now, by setting criteria for the court to use when considering whether to grant bail. This amending bill extends those criteria for a limited category of persons.

On balance, as I have said, the Labor Party does not think that this provision will have any great impact on the overall crime rate, and I do have concerns about it. It might delay the commission of some offences by some people if their bail is refused but, as I said and as I reiterate, it will not address the root cause of crime.

However, the bill does not, in our view, unduly trespass on the accused's rights. It applies only to a limited category of persons on bail for a serious charge who allegedly commit another serious offence. Perhaps the Attorney's intention in relation to this bill is that it send a clear signal to the judiciary that the community is fed up with alleged repeat offenders; that the escalating crime rate in the community does warrant action.

What the Assembly is talking about here, if this particular bill is passed, is a person accused of a serious offence allegedly committed while on bail for another serious offence or other serious offences. We are talking about people who are on bail on the basis of an alleged serious offence which they have been charged with. We are talking about those people allegedly committing further serious offences whilst on bail, coming before the courts and making an application for bail and perhaps receiving it.

The legislation suggests that the court should, in those circumstances, not grant bail unless there is some persuasive argument for doing so. There is a discretion retained in the magistrate or the court to grant bail in any circumstance, albeit the applicant will have to marshal a significant argument of the case, just as the DPP and the police do at the moment. In those circumstances the applicant is being asked to make a case to the magistrate for bail. He will have to argue special and exceptional circumstances. They are not defined.

It will be interesting to see the definitions the court applies in circumstances where somebody on bail for a serious offence comes before the court again charged with another serious offence and applies for bail and says, "Look, this is why you should grant me bail." Serious and exceptional circumstances, I would imagine, would relate to a person's family situation. I imagine they would relate to a person's employment status.

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