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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1137 ..

allowed to include the denial of important and inalienable individual liberties such as the right to liberty and security of person. There should be a presumption in favour of granting bail in relation to offences. If there are grounds for denying bail they can be heard and examined by the due process of law, which is what happens in the ACT. In today’s Canberra Times there is a story about a man who has been denied bail. It does happen that bail is denied by the ACT court system. I am unsure of the problem the government and the opposition think they are trying to fix by taking away the rights of Canberra citizens.

In a modern liberal democracy, how can we tolerate a system that enforces a presumption of law against respecting our citizens’ inalienable right to liberty? How can we permit the use of power of the state as an instrument of terror by arbitrary imprisonment? Why should someone with strong claim that the death in question was accidental, in self-defence or was not actually committed by them be automatically detained when there is no evidence to suggest that he or she will flee or that he or she is a risk to the community? This is hardly an exceptional situation in a legal sense. The presumption will prevail in defiance of the merits of the case. The shift to a neutral presumption is not as unjust as a presumption against bail, but it still carries an implication of an assumption of guilt. So I cannot support these changes in the principal bill or in the government amendments.

I will comment briefly on some of the government amendments, particularly the amendments to proposed new section 8A that the government seeks to include. My understanding, after having only a few hours to consider these amendments, is that, in effect, the section has a partly retrospective effect because people sentenced to a non-custodial sentence before this bill passes can now be affected by the new presumptions relating to bail if they breach a court order after the bill passes. We are talking about a retrospective criminal law, some of the most regressive laws of all. Once again, the amendments appear to be founded on assumption that a judge or magistrate is not capable of considering all the relevant circumstances when determining whether or not to grant bail if a non-custodial, periodic detention or home detention order is made. I cannot agree with this assumption.

In considering the possible effect of a decision of the Assembly to support this bill it is worth considering that remand prisoners are more than twice as likely to be involved in incidents of self-harm as sentenced prisoners. Suicide attempts have been made by people accused but not convicted of such minor offences as driving without a licence and possession of cannabis. A number of these people should not have been imprisoned at all and were actually wrongly imprisoned. The law as it stands in these cases conflicts with the dictates of justice and essential human freedoms. Those people are there because they and their families do not have the money to provide a surety, because they were presumed guilty from the outset or because the system of remand is perfunctory and prejudiced. Many people’s lives are ruined by this clash on their civil liberties and, sadly, some lives are lost.

I now turn to the second part of the government amendments, which are intended to prevent a magistrate from reviewing another magistrate’s bail decision unless there is a significant change in circumstances or fresh evidence. Only a judge, I understand, would be permitted to review a magistrate’s decision. Similarly, judges would only be able to review another judge’s bail decision if there were fresh evidence or changed

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