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Legislative Assembly for the ACT: 2003 Week 11 Hansard (22 October) . . Page.. 3964 ..

MR STANHOPE (continuing):

Mr Stefaniak's bill would make the Commonwealth offence of treason hold a presumption against bail in the Bail Act. Treason offences, of course, are extremely rare in Australia. The heinous part of treason is the murder of either the nation's sovereign, her heir, her consort, the Governor-General or the Prime Minister. If a person were charged with this crime of treason, the person also would be charged with murder. As I have indicated, the government's policy defines murder as an offence that holds a presumption against bail. That part of Mr Stefaniak's bill contributes nothing new.

Any other element of the charge of treason involving harm to the sovereign, war against the nation or assisting an enemy nation inherently involves a strong fault element of intention on the part of the offender. The government's policy of removing any presumption for or against bail for a charge of treason will enable the court to assess the strength of evidence in the first instance and to hear argument from the prosecution and defence to judge whether bail is appropriate. The government's approach retains a balance between the interests of the community and the individual.

However, the next part of Mr Stefaniak's bill confounds justice and imposes an extra burden upon the police. Mr Stefaniak's bill includes the presumption against bail for any indictable offence that involves an offensive weapon. The wording of the bill gives the impression that this subclause only means offences with an object that is inherently a weapon, but the explanatory statement gives it away. Mr Stefaniak has copied the definition of "offensive weapon"from the Crimes Act and he intends to paste it completely out of context into the Bail Act.

Mr Stefaniak's use of this definition would mean that any object that could be capable of being used as a weapon would be regarded as a weapon-any object, whether it be a belt, a handbag or a mobile phone. Common personal items are all defined as weapons under Mr Stefaniak's bill.

The bill also says that the possession of anything that could be used as a weapon is by default evidence that a person intends to use violence in an offence. This implication of violence also applies to the accused person if an accomplice of the accused has an object that could be used as a weapon.

There is another bizarre twist to this provision. This part of the bill applies to anyone accused of an indictable offence, which is an offence punishable by imprisonment for longer than a year. There are 132 indictable offences in the Crimes Act. There are only 19 offences in the Crimes Act which are not indictable. In the category of theft alone there are 13 indictable offences, which are frequently used and which contain no violent element.

In Mr Stefaniak's view, any person carrying an object that could be used as a weapon while committing any indictable offence should be put in the remand centre. That would put the police and the Director of Public Prosecutions in a very difficult situation. The police and the DPP would be compelled to inform the court of every circumstance where the accused person was carrying an object that could be used as a weapon and the court would be obliged to order that person to be remanded. The determination of whether an object that is not obviously a weapon is intended to be used as a weapon should be the responsibility of the court, not a burden for the police.

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