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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1149 ..

Mr Stefaniak’s attempts to create a presumption against bail for any person accused of offending whilst awaiting trial is actually even more regressive. I believe the intention is to prevent repeat offenders from continuing to offend whilst awaiting trial. However, until the court has determined the guilt of an accused, we cannot assume that the accused is in fact a repeat offender because it has not been proven that they committed the first crime. So this amendment is also not one I can support. My major concern is with Mr Stefaniak’s amendment to clause 18 which would remove the requirement of a court to consider the best interests of a child offender. Children can be seen as only partly responsible for crimes they commit. Some responsibility needs to be taken in relation to guardians and the community as a whole, which has almost invariably failed to nurture and protect that child so that they have ended up in the criminal justice system.

We have been discussing the rights of children for a very long time in this place but obviously not long enough. There are points about how people—young people in particular—understand the laws of the world around them. The fact that people have understandings such as those is something that, as a community, we continually grapple with. So I am very disappointed to see this amendment from Mr Stefaniak. I do not think there is anything in Mr Stefaniak’s amendments that I could support even just a little bit.

MR STEFANIAK (9.12): I do not want to delay debate so, at this stage, I will exercise my right to speak twice on these amendments. I thank members for their comments, although I do not agree with them. I note that these amendments are lost. I do not intend calling divisions until we get to my amendment to schedule 2.1.

In relation to some other points that were raised, it was either Ms Tucker or Ms Dundas, or both, who made comment about leaving it all to the judges and magistrates because they will invariably make the right decision. Judges and magistrates are only human, as they often accept. I might say that some of the persons who wanted these improvements made are judges and magistrates. There is both a judge and a magistrate on the Law Reform Commission—Ken Crispin and Elizabeth Campbell.

The amendments I made to section 9A of the Bail Act in 2001 have been transferred to new section 9D. Those amendments came about because the courts were experiencing problems with the 1992 act. Comments and suggestions were made by then Chief Justice Jeffrey Miles, a man I have a lot of respect for and whom I have appeared in front of on many occasions. He indicated quite clearly that the law was not good enough and that the courts needed assistance. Another person I have a lot of time for, have known for many years and have also appeared in front of is Ron Cahill—a man I admire greatly and like a lot—had those same concerns. Both of those gentlemen made suggestions to further improve section 9A, which led to further amendments tidy up that clause, which were passed by this Assembly in August 2001. So I do not think it is right to say that judges and magistrates are left entirely to their own devices. Often many judges and magistrates do not particularly want that and they appreciate the value of the legislature imposing sensible laws.

I hear what the Attorney says in relation to the three areas of the Human Rights Act he rattled off, and he may well be right; there could conceivably be other areas which might lead to declarations of incompatibility. I am not going to revisit the debate in that regard but the Human Rights Act, apart from being something the Attorney finds very exciting,

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