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Legislative Assembly for the ACT: 2003 Week 14 Hansard (11 December) . . Page.. 5211 ..

MR STANHOPE (continuing):

statutory bias. All other offences before authorised officers or the courts will retain a presumption for bail. I also foreshadow that once the territory has modernised drug trafficking offences in line with the national model criminal code, the new offences related to organised crime will also hold a presumption against bail.

Before discussing the other changes to the Bail Act, I inform the Assembly that the government proposes to retain provisions in the Bail Act that require courts or authorised officers to consider any known concerns expressed by a victim about the need for protection from violence or harassment. The government is also retaining the provisions dealing with domestic violence offences which state that bail cannot be granted by an authorised officer, usually a police sergeant, unless the decision maker is satisfied that the accused poses no danger to the protected person. Even if the authorised officer is satisfied that no danger is posed, the criteria for bail must still be considered by the officer before a decision is made.

The second theme of changes to bail law is the clarification of a number of outstanding issues identified by the ACT Law Reform Commission and by the organisations that are intimately involved in the bail system-the police, the courts and the Director of Public Prosecutions. This bill provides a clear guide to bail decision makers about the factors the community considers important in deciding whether or not to grant bail. Clause 11 of the bill sets out criteria for bail and introduces a consistent method of decision making.

The fact that children are before the courts on criminal charges is a distressing reality for our community. The government has carefully weighed up this issue, seeking the delicate balance between protection of the community and the interests of children, who are inherently immature in mind and body. The bill ensures that the interests of a child remain a primary consideration when decision makers are determining bail for the child. The bill refines this issue by affirming that, while a child's interests will be a key consideration, it will not be an overriding consideration if the facts show community safety has a greater need.

Since tabling the Law Reform Commission's report and the government's response the Supreme Court has drawn the government's and the Assembly's attention to a vacuum in the Bail Act between a court finding charges against a person proven and the person being sentenced. This vacuum is particularly relevant to those cases where a custodial sentence is likely. To remedy this problem the bill ensures that the status of bail between the time of a guilty verdict and the imposition of a sentence attracts any presumptions relating to the charges involved. The bill also requires bail decision makers to consider the likelihood of a custodial sentence when deciding to disallow or allow bail.

As I noted earlier, the government's bill introduces a presumption against bail for charges of murder and charges that extend from that crime. The bill states that bail on a charge of murder can only be considered where special or exceptional circumstances apply. The meaning of this term "special or exceptional circumstances"has been discussed on occasion over the past decade or so in this Assembly, in ACT courts and in the courts of other jurisdictions. This bill is an opportunity to give the term a better meaning.

The government is not proposing to prescribe all of the situations that equate to special or exceptional circumstances. Instead, the bill addresses the test of special or exceptional

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