Page 2310 - Week 07 - Thursday, 4 August 2016
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It is not the prosecutor deciding that the person should be retained in custody. It is the prosecutor deciding that there needs to be a review of the decision and seeking that review. That is what this bill is enabling. To portray it as though it is giving power to the prosecutor to determine a matter that is rightly determined by a magistrate is a straw man. It is no different from any other power of review available to prosecutors in other circumstances where they seek that review before another judicial officer or a higher court.
The question at play, of course, is that the person will remain deprived of their liberty for a somewhat longer period whilst that review takes place. What the government is saying, through the amendments that I have outlined, is that that deprivation of liberty should not be longer than 48 hours beyond the original decision to grant bail which the prosecutor has sought review of. That is a proportionate response when you balance it up against the risks posed by the potential release of a person in terms of public safety or individual personal safety. So that is the issue at play.
But I will not accept this absurd argument that magistrates’ decisions to grant bail are infallible but magistrates’ decisions to not grant bail are potentially prone to error and should be available to be appealed by the accused. Of course they should be available to be appealed by the accused, to seek review by the accused. But also, in certain limited circumstances, an appeal, a review, should be able to be available to the prosecution, and that is what this provision does.
MR HANSON (Molonglo—Leader of the Opposition) (12.00): I support the clause, the reason being that it is a matter of balance. I think that it has been characterised here by Mr Rattenbury and Mr Corbell as black and white. As I said, there are serious issues on both sides to be considered between community safety—and that has been articulated by Mr Corbell—and the rights to liberty once decisions have been made by the magistrate, as articulated by Mr Rattenbury. But it is not as clear or as black and white as I think either is presenting.
What I would say is that there are strong arguments on either side, as there often are in areas like this where the law is complex and the consequences are significant in relation to deciding to keep people in custody or release people on bail where there is a potential that there may be a threat to the community. On balance, given that amendments will be put by Mr Corbell on the time of incarceration, I think that it is right that we err on the side of community safety in this regard, but I do not think it is useful to characterise this as a black and white debate.
Clause 5 agreed to.
Clause 6.
MR CORBELL (Molonglo—Deputy Chief Minister, Attorney-General, Minister for Health, Minister for Police and Emergency Services and Minister for the Environment and Climate Change) (12.02): I seek leave to move amendments Nos 3 to 5 circulated in my name together.
Leave granted.
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