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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1139 ..

the criteria for granting bail to be applied for adults facing non-minor charges other than domestic violence. Section 22—the current wording—says:

(1) In making a determination regarding the grant of bail to an accused person who is not a child, a court or an authorised officer shall have regard to the following matters, so far as they are ascertainable:

(a) the probability of the person appearing in court in respect of the offence for which bail is being considered, having regard only to—

(i) the background and community ties of the person, having regard to the nature of his or her home environment and employment and to his or her criminal record; and

(ii) the circumstances in which the offence is alleged to have been committed, the nature and seriousness of the alleged offence, the strength of the evidence against the person and any other information relevant to the likelihood of the person absconding;

“the nature and seriousness of the alleged offence, the strength of the evidence against the person”—but this is in the context of the likelihood of the person absconding—

(b) the interests of the person charged, having regard only to—

(iii) the period that the person may be held in custody if bail is refused and the conditions under which he or she would be held in custody; and

(iv) the need of the person to be free for the purposes of preparing for his or her appearance before a court and obtaining legal advice and for other purposes; and

(v) the need of the person for physical protection, whether the need arises because the person is incapacitated by intoxication, injury or use of drugs or arises from other causes;

(c) the protection of the community, having regard only to—

(vi) the likelihood of the person interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice whether in relation to himself or herself or any other person; and

(vii) the likelihood of the person committing an offence while released on bail; and

(viii) the likelihood of the person harassing a victim or other persons while released on bail.

The criteria are not that different with the new bill; there have been some changes in words. As I am reading it, the new formulation not only clarifies the language but also makes the seriousness of the offence something to be taken into account in considering all the principal criteria. The expressed concerns of victims as to harassment are in clause 23A and are to be taken into account. Again, the principal criteria are framed around the likelihood of turning up in court or of interfering with witnesses or other aspects of justice. These are proper concerns.

As I said before, the government through this bill is responding to what it sees as a concern that it is difficult for the judiciary to not grant bail, in particular by introducing this concept of neutral presumption. Why the existing criteria are inadequate has not been argued convincingly, but at least I appreciate the fact that the government, through introducing the neutral presumption, is avoiding a greater application of presumption against.

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