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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1148 ..

The government’s bill incorporates the spirit of the Law Reform Commission’s recommendations but takes it a step further by creating a means for the judiciary to assess bail for people charged with serious offences without any statutory bias. As I have argued in the Assembly before, the government has taken a disciplined approach to this. The government is conscious of the appropriate division between the legislature and the courts. The role of the legislature is to make laws for peace, order and good government; its role is not to be a substitute for the courts. The government and the legislature should not prejudge or adjudicate criminal cases in place of the courts. As I said, I believe it is our responsibility to govern for all. In drafting these provisions the government has taken into account that range of rights—the rights of the community, the rights of victims and the rights of those accused of crimes—on equal terms.

MS TUCKER (9.07): The Greens obviously will not be supporting Mr Stefaniak’s amendments. I am glad to see that the government is not supporting the amendments either. Mr Stanhope was just saying that there would be a capacity for the courts to make decisions about bail on those other crimes. So there seems to be a confidence in the courts on the part of the government on those crimes, but not on murder or the other ones they have prescribed.

I wanted to make a couple of comments about the whole notion of presumption of innocence in this part of the debate. The notion that the presumption of innocence has not somehow been removed, because a person can later be found innocent, totally misses the point. The point is that, if I am accused of something I am innocent of and I am imprisoned for a period of time, I have been punished. I am an innocent person but the presumption of innocence has been removed from me while I have been incarcerated. We had this discussion on the federal ASIO legislation.

If you follow the logic of Mr Stanhope’s presentation, the federal government can keep someone incarcerated for as long as they like. After a while, when the interrogation has finally finished and it is found that the person is innocent, it is fine. We have not removed the presumption of innocence at all. They may have been found innocent but the point is that, in the meantime, their life has been ruined. That is the whole point of concern about depriving people of their liberty before they have been found guilty of anything. It is my belief that in our country, unless there are very good reasons, people are presumed innocent and therefore not punished.

MS DUNDAS (9.09): I have already expressed quite strongly the Democrats’ view that it is essential that we safeguard the legal right to be presumed innocent until proven guilty. This is why we are opposed not only to what the government is trying to do tonight but also to what Mr Stefaniak is trying to do. His amendments go even further than those of the government in eroding the rights of accused people. Since I do not support the presumption against bail for murder I cannot support the presumption being extended to sexual assault, armed robbery, aggravated burglary, intention or infliction of GBH, drug offences and the rest of the list that Mr Stefaniak has put forward. The financial cost of incarcerating all these extra accused people does not even bear contemplating, let alone the social cost of incarcerating so many people, many of whom will be found innocent but will then find it quite hard to put their lives back together.

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