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Legislative Assembly for the ACT: 2003 Week 14 Hansard (9 December) . . Page.. 4977 ..

MR SPEAKER: Order! The member's time has expired.

MS DUNDAS (10.56): Mr Speaker, the Democrats believe that the fundamental human right to liberty should not be denied lightly. A demonstrable risk to public safety is clearly a situation where the denial of liberty is justified and we believe that magistrates and judges are well placed to make a judgment about that risk.

I agree with the Law Reform Commission that it is not possible to devise a rigid formula that would do justice in all circumstances, but I support the setting of parameters around the discretion to grant or deny bail. Although the Law Reform Commission has extensively considered the issue of bail guidelines, I am not convinced of the soundness of all of the recommendations put forward in its initial report.

With the right to liberty taken as a starting point, I am doubtful about the value of legislation that stipulates that a person subject to particular kinds of charges should automatically be denied bail. This has been a theme of bills put forward by the ACT Liberals in recent times. That kind of law appears to prejudge the guilt of an accused person in situations where only a prima facie case has been made.

The ACT Democrats agree with the Law Society that reversing the presumption of bail for serious offences, as proposed by the commission, is undesirable for the same reason. I am glad to see that the government has not supported these recommendations. I am also doubtful about the soundness of a recommendation that permits the Magistrates Court to remand people for more than 15 days at a time. If an accused is incarcerated, the justice system should be focused on the conclusion of the justice process and making sure that happens in a timely manner.

The right to liberty is particularly important in the case of children charged with criminal offences. With children we must make every effort to strengthen their social connections and promote their rehabilitation. Incarceration must be a last resort. I support the continued obligation of the decision maker to consider the best interests of the child when deciding on bail or bail conditions. I am pleased that the government has not embraced the recommendation on that put forward by the Law Reform Commission, but I will have to look carefully at the form of the final bill on bail reform in relation to young people because the government's position in relation to young people needs a bit more work.

I was concerned about the recommendation from the Law Reform Commission to remove the presumption against bail in the instance of domestic violence and I was pleased to see the government deciding to reject this recommendation, considering the evidence that many women who have been killed by ex-partners have been killed while an apprehended violence order was in place and also when the ex-partner was out on bail.

I remain concerned about the recommendation to remove the requirement for a decision maker to consider a victim's concerns about violence or harassment if bail is granted, which is clearly most applicable in situations where women have been subject to stalking. I would not support a blanket rule that bail be denied in these circumstances, but there is evidence that stalking also has often ended with assault or murder. A victim's

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