Page 2305 - Week 07 - Thursday, 4 August 2016
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To ensure, therefore, that the rights of the accused are limited in the least restrictive manner possible, whilst also providing that a bail decision can be reviewed in circumstances where the risk of harm is considered by the DPP to be very real, I am moving a further government amendment to this power that I will shortly outline.
I would make the point, Madam Assistant Speaker, that the accused, under existing bail law, has three standing opportunities to seek review of a decision not to grant bail, two of which can be activated without any additional or new evidence being led. So there is a significant protection for the accused, as there should be in our criminal law, when it comes to the potential to deprive someone of their liberty and detain them in remand.
But at the moment our Director of Public Prosecutions has no capacity to seek a review of a bail decision. What I would ask critics of this proposal is this: are they suggesting that every decision made by a magistrate in relation to a grant of bail is infallible and not potentially subject to error? There are and have been significant adverse circumstances in other jurisdictions where an offender has been released on bail and there have been catastrophic consequences as a result, resulting on occasion in serious injury or death to a third party.
This is frequently, unfortunately, a prospect or a concern that arises in relation to charges around crimes of violence, particularly in the family and domestic violence space. If we are serious about ensuring that there is an adequate capacity to deal with error on the part of our magistrates when it comes to a grant of bail in exceptional circumstances where the risk is real and apparent to either an individual or to the community at large, then this power should be available.
I would say to those opposite and to critics of this proposal: what is the alternative? Yes, the person needs to be detained in custody whilst the review is sought. To do otherwise would defeat the purpose of having the review in the first place. These are the matters that are in play. The government, in its human rights compatibility statement, has outlined very clearly that this is the least restrictive means possible to address the risk that is present. If there is an alternative that does not involve the person being released, then I would like to hear it, but the facts are that no alternative has been presented. Yes, this is a complex and difficult issue, but I am confident that the government has struck the right balance.
The amendments that I will be proposing deal with the issues around the period in which the Director of Public Prosecutions must make an application to seek a review of bail, which will be within two hours of the matter being decided by the magistrate and, secondly, requiring the court to hear that matter within 48 hours, including periods when the court is not sitting.
This is an important safeguard. It means the person will not be held in custody for more than a period that is absolutely necessary. It may put some pressure on the courts to hear the matters quickly but that is as it should be, given that we are dealing with the potential liberty of a person. I am confident that the courts will be able to respond to the timeframes that this bill proposes.
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