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Legislative Assembly for the ACT: 2003 Week 14 Hansard (9 December) . . Page.. 4975 ..

MR STEFANIAK (continuing):

I think it is a shame that the presumption in favour of bail still exists for serious offences such as murder, supplying serious drugs and particularly nasty crimes where violence is involved. The committee has recommended that it should be reversed to a presumption against bail. I think that it is eminently sensible to have a presumption against bail there. It is a presumption that is rebuttable, but the accused really have to be on their mettle to show why they should be entitled to bail and why the right and expectation of the community to be protected should be put to one side in relation to their particular matters.

At least the Attorney is indicating that there will be a presumption against bail for murder and, I think, serious drug offences, which is something. He has listed a whole series of matters where there will be no presumption, which is, again, an interesting concept and one probably going back to the situation pre-1992. I would have preferred a more robust approach to this issue by the government. The Law Reform Committee is hardly comprised of the redneck law and order types that this government rails against from time to time. It is a very learned committee which made these recommendations after several years of deliberation. I am disappointed that the government does not support recommendation 8, but do acknowledge that at least they go a little bit of the way there, which is better than nothing.

Obviously, the opposition will wait to see the government's bill before it makes a detailed response to any of these matters, but I would tend to think that the government might be being sensible in regard to recommendation 12. The government's decision not to support recommendation 12 may well have some merit. I will see what pans out there in terms of the bill. The government goes part of the way concerning sensible recommendations by the committee in recommendations 11 and 17 which would remove the obligation on decision makers to consider the best interests of a child when deciding on bail or bail conditions in respect of children.

The committee talked about the duty to the community and the real danger to the community some young people might cause if they are released on bail and how the best interests of the child should be a relevant consideration. It conflicts with the obligations courts have to the community to interpret that to mean their best interests are in being allowed to be at large. I think that it is an eminently sensible recommendation that that is merely an interest that can be looked at alongside a whole lot of other interests.

The deciding factor, however, should be whether, on balance, the community's interests are not going to be served by someone, be it a child or otherwise, getting bail. The paramount concern should be the safety of the community, the safety of witnesses, the likelihood of persons getting out there and committing further offences. It really annoys the community to see that happening. Whilst the government is going a little bit of the way there, I think that that is something on which it probably should have supported the Law Reform Commission much more fully than it has done.

There are a number of other interesting recommendations in this report-for example, the one about specified conditions being imposed on bail for minor offences. I can think of a number of instances where that would be very appropriate. Another issue in relation to bail which can be of concern and which I do not think our courts necessarily handle

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