Page 2126 - Week 06 - Tuesday, 8 May 2012
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The withdrawal of the appeal in Islam meant that the government could consider its final response to the declaration. The government supports a presumption against bail for people charged with an offence captured by section 9C. Crimes that are punishable by life imprisonment represent the worst offences on the criminal calendar. Protecting the community from the danger presented by those alleged to have committed these types of crimes and making certain that people charged with these offences are brought to justice is a priority for the government. The community, as well as key justice stakeholders, have supported a higher threshold for people charged with these offences when it comes to bail applications. However, the government is also committed to ensuring the territory’s law is compatible with human rights.
The final response proposes amendments to the Bail Act that seek to ensure that the legislation is compatible with the Human Rights Act. The amendments proposed in the response do not eliminate the requirement for an applicant to establish special and exceptional circumstances but will allow the court to consider the normal bail criteria in determining the existence of special and exceptional circumstances. The government considers this would ensure the limitation of section 18(5) of the Human Rights Act is reasonable and justified.
The proposed amendments will be as follows: section 9C(1) be amended so that it applies to any offence that carries a penalty of imprisonment for life; sections 9C(2), 9D(2) and 9E(2) be amended to state the court must have regard to the nature of the offence when determining special or exceptional circumstances; and lastly, 9G be amended to allow the court in making a consideration about special and exceptional circumstances to have regard to matters mentioned in section 22 and the matters in section 23 when it comes to a child.
The first proposed amendment addresses Justice Penfold’s comment that section 9C does not apply to all offences carrying penalties of life imprisonment that might be dealt with in ACT courts. Justice Penfold also raised the question of whether the limitation imposed by section 9C is rationally connected to its purpose. The government has proposed that section 9C apply to any law in the territory punishable by life imprisonment. This ensures the aim of section 9C—that is, to capture the most serious charges in the criminal calendar—is clear from the legislation.
In her decision Justice Penfold stated she was not convinced there is a real risk of the court ignoring the nature of the offence when it is of a serious nature. However, Her Honour found that if there is such a risk, the direction to consider the offence must operate as a requirement rather than a general consideration.
Proposal 2, therefore, is intended to operate as a signpost to the court that the presumption against bail is in operation due to the serious nature of the offence the accused is charged with. This is signposted by the offence carrying a maximum penalty of life imprisonment. It is intended that, by drawing attention to the serious nature of the offence, a parallel can be drawn with the increased burden placed on the accused.
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