Page 26 - Week 01 - Tuesday, 15 February 2011
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representation and that providing two applications as of right was the fairest arrangement.
I would now like to turn to the issue of the change of circumstances test. The reform to the test is straightforward in that it simply removes the term “significant”. It is important that both the reason for this change and how the new threshold provision will operate are understood.
The term “change of circumstances test” is a particularly important concept and again appears throughout the grant of bail and review provisions. It expresses the requirement for new information or circumstances to be presented before a court before a court can hear repeated applications for bail or review. More specifically, the test requires an applicant to establish that since the most recent application either there has been a change of circumstances relevant to the granting of bail or fresh evidence or information relevant to the granting of bail has become available.
The new threshold provision seeks to amend our legislation to mirror the interpretation of the existing provision by the Supreme Court in the context of the territory’s Human Rights Act. The Supreme Court has, in effect, moderated the strictness with which the requirement of “significance” has been applied to comply with the right not to be detained in custody awaiting trial as a general rule.
However, I want to stress to members that this revised provision is not intended to lower the threshold from the current approach taken by the Supreme Court but is to ensure that the legislation reflects the interpretation that has been applied by that court. In this regard there are two important matters to highlight.
Firstly, there must be a real change or new information which merits further consideration of bail by the court. Secondly, any new circumstance or information must be relevant to bail; that is to say, it must go directly to the criteria that the court must consider when weighing up whether bail should be granted.
Other jurisdictions in Australia have similarly worded tests to the proposed new ACT provision and their case law provides useful guidance to the ACT courts and legal practitioners. For example, the Victorian Bail Act requires the applicant to satisfy the court that “new facts or circumstances have arisen since the making of the order”. This test was the subject of judicial scrutiny in the case of application for bail by Antonios Mokbel in 2002 when the presiding judge commented:
In my view the new facts or circumstances must be of such a nature that they are relevant to bail and justify a conclusion by the Court that reconsideration of the refusal of bail is required. Clearly not every new fact or change of circumstance will fall into this category.
The reformulated change of circumstances threshold test strikes the right balance between preventing repeated and unnecessary bail hearings and allowing further applications where they can be justified.
I would now like to turn to the bill’s reform of the bail jurisdiction of the Magistrates Court itself.
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