Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .

Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1144 ..

make a number of assertions that the government rejects and that, it suggests, do not reflect the law. I have to say that I think the Law Society, in relation to its interpretation of some aspects of human rights law and the interpretation of issues around bail, is so far off the mark and so wrong that I have some real concerns about the integrity of the submission. I must question some of the motivation of the society in the last-minute presentation to members of the Assembly of a submission which I think is, to say the least, extremely questionable in terms of the rigour of the legal position and the legal interpretations that it makes. I will go to some of those now.

In relation to the first of the issues it puts—and these issues have been picked up in the debate this evening by those who oppose it, and I have to say their interpretation is simply wrong—bail and the presumption of innocence, it is well established in Australian law—and I would have assumed that the Law Society would have known this—that bail decisions based upon statutory law do not in any way prejudice the presumption of innocence. That is broadly known. It is widely known and it is accepted throughout Australia. The assertion that the Bail Act can prejudice an accused person’s presumption of innocence is factually wrong and legally wrong. The Law Society is simply wrong. There is no right to bail in our legal tradition, as was rightly pointed out by the scrutiny of bills committee in its report of 24 February, after examining the government’s bill.

The government considered judicial views on this matter when drafting the Bail Amendment Bill. In 1995 the New South Wales Supreme Court, sitting as the Court of Appeal, considered the issue of the statutory presumption against bail in the New South Wales Bail Act of 1978 in the case of Chau v Commonwealth Director of Public Prosecutions. In that case the president of the court, President Kirby, who is now a Justice of the High Court, stated that a statutory provision which held a presumption against bail did not amount to a new development of, or intrusion upon, the judicial function. President Kirby noted as follows:

The setting of bail is not, as such, a comment on the guilt or lack of guilt of an accused. It cannot affect the process of the trial, the giving of evidence, the determinations of a judge or jury, the outcome of the trial or the subsequent sentence. Indeed, in the course of the trial, the grant of bail is rarely, if ever, alluded to.

In the same case, Gleeson CJ, now the Chief Justice of the High Court of Australia, said:

A law conferring a discretion on a court can determine the factors to which the court must have regard in exercising the discretion, or the relative weight to be given to different factors, or it can provide that there is a presumption that the discretion should be exercised in a particular way, save in exceptional circumstances.

These issues and the references to the cases are discussed on pages 3, 8 and 9 of the explanatory statement accompanying the government’s bill. Introducing a hierarchy of presumptions to the Bail Act will not, cannot and does not prejudice a person’s presumption of innocence. The Law Society, the Greens and the Democrats are wrong.

On the issue of bail and human rights, it is interesting to see that the passage of the Human Rights Act has perhaps had its first success. People are now looking at laws of

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .