Page 2770 - Week 07 - Wednesday, 6 June 2012

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The Bail Act also requires the court or authorised person to consider, as a primary consideration, the best interests of the child. This approach is consistent with article 3 of the UN Convention on the Rights of the Child 1989. Article 37(b) of this convention states:

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

What Ms Hunter’s bill would do is inappropriately limit a police officer’s discretion to arrest a young person where they are in breach of bail. The amendments in the bill will significantly restrict police discretion. It would be difficult for a police officer on the street to feel confident about or have sufficient information to determine what would be in the best interests of the child.

Furthermore, while the amendments may appropriately divert some young people, the amendments would also likely lead to inappropriate decisions not to arrest a young person believed to be in breach of bail. Where a young person is arrested in relation to a breach of bail, the amendments would also likely lead to allegations that police failed to properly consider the young person’s best interests or the youth justice principles which, in turn, would likely lead to complaints against police for civil damages because an unlawful arrest had been made.

Such claims would not be in the best interest of justice in the territory and are surely not the intended result of this bill. It appears that the Greens have not considered the possible negative consequences of their amendments. Another reason why the government is not supporting the Bail Amendment Bill is because no Australian jurisdiction imposes a restriction on a police officer’s ability to arrest a person for a breach of bail in the way proposed by Ms Hunter. This bill is simply not an advance.

The approach suggested has not been adopted in other human rights jurisdictions like New Zealand or the United Kingdom. In other Australian jurisdictions and the United Kingdom, police apply the same test for adults and young people when deciding whether to arrest for breach of bail, and that is the matter in question here.

Currently in New Zealand, police can only arrest a person under 17 years of age for breach of bail conditions if it is necessary to stop them absconding, interfering with witnesses or offending. This law is in the process of being amended so that police will have the ability to arrest a young defendant under 17 where the defendant has significantly or repeatedly breached any condition of bail. This will bring the law closer into line with the test for adults.

Making policy considerations in highly contentious areas such as bail should also only occur following consideration by and engagement with stakeholders. The Bail Act is a cornerstone of the criminal justice system and any reform should be done in a considered manner. The government has recognised this, in fact, in the approach that I have proposed in the final government response to the declaration of incompatibility of section 9C of the Bail Act.


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