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Legislative Assembly for the ACT: 2003 Week 14 Hansard (9 December) . . Page.. 4979 ..

MR STANHOPE (continuing):

to the judiciary when the judiciary hears applications for bail and it is my view that this discretion, especially for judicial officers, is a crucial component of our justice system.

The alternative is for the government to take a prescriptive approach and simply enact a framework which automatically links detention, conditions or freedom to each and every crime on the territory's books. Schematic legislation would undermine the very reason for judicial officers determining bail at the outset of the criminal justice process. In developing the government's policy, we were mindful of this danger.

In responding to the Law Reform Commission's bail report, the most important policy decision the government had to make was on the issue of presumption. The government wants to support the work of the judiciary, but it also wants the judiciary to have a clear picture of the community's expectations. As a government and as a legislature, we are elected to make those decisions. At the same time, we should not necessarily restrict the courts' discretion or substitute for the courts' role. The major policy decision is the explicit identification of crimes which attract different types of presumption: a presumption for bail, a presumption against bail, and no presumption at all.

The Law Reform Commission recommended introducing a presumption against bail for serious offences that were in some cases explicitly listed by the commission and in other cases described by the commission. The government's policy incorporates the spirit of the Law Reform Commission's recommendations, but takes it a step further by creating the means for the court to assess bail for people charged with serious offences without any statutory bias.

Replacing the presumption for bail with a presumption against bail for serious offences would run the risk of creating a new set of problems, rather than solving the problem at hand. I have to say, Mr Speaker, that the commission envisaged an application of a presumption against bail which would hold a greater subtlety than how the current presumptions against bail actually work in the legislation. In other words, the commission suggests a lower test to overcome a presumption against bail by simply working through the normal criteria for bail and placing the onus on the defence to argue that bail would be appropriate for the defendant.

As I said before, the government took on board the spirit of the commission's policy, but improved it in two ways. Firstly, we cleared the desks altogether by deciding that there should be a category that holds no presumption towards bail, neither for nor against. Secondly, rather than trying to describe the offences, which would create a number of interpretive problems, the government decided to specifically identify the offences that should hold a neutral presumption.

In that regard we decided there should be a neutral presumption in relation to manslaughter, industrial manslaughter, intentionally inflicting grievous bodily harm, sexual assault in the first degree, sexual assault in the second degree, sexual intercourse with a person under the age of 10, manufacture of drugs of dependence, cultivation of prohibited plants for supply, wholesale or sale of prohibited substance or drugs of dependence, Commonwealth Customs Act drug trafficking offences, armed robbery, aggravated burglary, and treason.

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