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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1138 ..

circumstances. I understand that the supposed evil this clause is meant to combat is magistrate shopping by the accused where a lawyer keeps pressing for bail with every magistrate that the accused comes before in an attempt to find that one magistrate who will let the accused out on bail. Because I am not convinced that it is usually appropriate to detain an accused prior to conviction, I cannot support the provision. I am glad that there is an exception for fresh evidence or significant change in circumstances, but a decision on what is substantial seems rather subjective.

Finally, I am glad that the government rejected the Law Reform Commission’s recommendations in relation to domestic violence charges and has created a requirement that the magistrate or judge grant bail only if they are satisfied that the charged person poses no danger to the victim. However, for all the reasons I have outlined, this bill is, overall, far from satisfactory and deserves opposing. It looks as though this bill will be passed as it has the appearance of being a little tougher on law and order than the existing act and is certainly a bandwagon the Canberra Liberals have jumped on and are pushing all the way downhill. But I am disappointed that the government has put forward such a regressive bill, especially considering the human rights legislation that we passed just last week and the evidence before us about what happens in our courts. Many people who are remanded on serious charges do not disappear; they are not flight risks. I fail to see what the government is hoping to achieve with this legislation. All I can see it doing is limiting the human rights of the people of Canberra.

MS TUCKER (8.29): The Greens will not be supporting the Bail Amendment Bill 2003 either. The fundamental problem with the bill for us, and with other so-called law and order campaigns around bail, is that it confuses punishment with the purpose of remand before trial. It reverses the onus of proof for certain serious charges, thereby undermining the right to be presumed innocent until proven guilty. Basic questions for the Greens regarding any bills before us are whether the changes will make the law fairer or more just. In this case there are really serious doubts in my mind. Why is this change being proposed? What is the vice that we are seeking to avoid? One of the very important principles of our criminal justice system is that someone should not be punished for a crime they did not commit. As one commentator said, “The pre-trial period is no time for punishment and/or revenge.” I am not suggesting that Mr Stanhope or Mr Stefaniak necessarily see it that way but I am concerned because I can see that that is one of the threads that is coming through from a lot of community comment. If that is the reason for the government responding in this way, it is very concerning.

The government has put in a neutral presumption clause or concept in the bill. I understand that that is in response to comments from magistrates who feel that, in some way, the presumption is too strongly for bail. After reading the criteria and looking at the comments by the Law Reform Commission, I just cannot see why that is happening. As I understand it, effectively the courts make a decision in the context of each case. The defence lawyers I have spoken to tell me that they understand that is what happens all the time. It is not a matter of a rubber stamp to get bail—a case has to be made, is likely to be challenged and so must be argued. However, it seems that some response may be necessary, which is some indication that the criteria should be weighed up.

I think it is important to put on the record the detail that is provided in the current law and this bill regarding bail to re-emphasise what bail is really about. Section 22 sets out

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