Monday, 3 December 2012

Speech on Amendment to the Bail Act

Page: 16833
Second Reading

Mr RON HOENIG (Heffron) [12.01 p.m.]: The Opposition supports the Bail Amendment (Enforcement Conditions) Bill 2012 as a sensible solution. However, the House should understand what led to its introduction. Magistrates, particularly out west and at Broken Hill, were imposing virtually a standard condition of bail upon usually young Aboriginal offenders not to drink alcohol. As a result, the courts were imposing a difficult burden upon police officers who were seeking to enforce the conditions of consent. As a result of a decision of Justice Garling, a review was conducted by the Law Reform Commission of the Bail Act in order to derive a sensible solution.

The House should understand the purpose of the Bail Act. One has to start with the fundamental concept which seems to have been lost as competing political parties struggle to beat the law and order drum to get some publicity in the metropolitan or tabloid media. The fundamental principle that has existed since the Magna Carta and which is the genesis of this House relates to the presumption of innocence. All people are presumed innocent until they are proven guilty. The mere fact that somebody is charged with an offence does not take away that presumption. If someone makes an allegation, the accused retains the presumption of innocence. If a person is not liked by another person, they retain the presumption and they remain innocent until the prosecution can prove their guilt beyond reasonable doubt. It is only then that they are subject to punishment as the law requires. The purpose of bail is to guarantee the attendance before the court of a person who is charged with a criminal offence. That is its purpose, so the accused can answer the charges or allegations made against them.

The Bail Act has the same objects today that it did when it was enacted. It contains criteria that the court or police have to meet before a person can be released on bail. The first question, under section 32 of the Act, is whether the person will appear. Matters to be taken into consideration under section 32 (1) include the person's community ties. Has the person previously failed to answer bail? What are the circumstances of the offence? Is the offence serious? What is the strength of the prosecution or Crown case? That is a relevant consideration as well under section 32. One has to consider the time a person may have spent in custody, whether the person is hampered in the preparation of their defence, the protection of the person—and there are particular requirements for Aboriginal offenders—as well as the protection and welfare of the community, witnesses, complainants and things of that nature. That is the purpose of the Bail Act. The courts should not lightly take away a person's liberty while charges are pending and have not yet been determined unless the criteria in section 32 have been applied.

These are onerous circumstances we have imposed upon courts. Over a number of years in this State we have imposed upon judicial officers such a burden in deciding cases that they are basically like sausage machines as they try to apply a complex Bail Act. I do not blame either the police or the magistrates out west who are no doubt sitting long hours. So burdened are some of the courts in this State in dealing with people's liberty that their task is extremely difficult. Even in the highest court in the State, the Supreme Court of New South Wales, judges work under oppressive conditions. Magistrates in local courts in the suburbs are sitting until very late in the afternoon or evening endeavouring to implement a complicated Bail Act while dealing with people's liberty. In relation to this bill, I draw the attention of the members to comments made by the Legal Aid Commission of New South Wales in respect of the Law Reform Commission's recommendations. The Legal Aid Commission strongly supports further consultation with stakeholders, stating:
      Because of the significant negative impact of the enforcement conduct conditions on vulnerable clients, particularly young and Aboriginal clients …
The alcohol provision may have been the condition Justice Garling dealt with in Wilson's case, but other directions are given, such as curfew directions. The Legal Aid Commission said that in its experience vulnerable clients with bail curfew conditions have been routinely subject to:
      … onerous bail compliance checks, often during the middle of the night and multiple times a week. Rigorous curfew checking can further disrupt a family situation already under stress. Legal Aid knows of cases where the young people have been made homeless as a result of onerous curfew checking by police. For adults too, curfew checking can affect relations with neighbours and landlords.
This bill takes a sensible middle ground, if I can use that expression. The overburdened courts will have to apply particular criteria currently contained in item [5] of schedule 1. New subsection (4) of new section 37AA provides:
      An enforcement condition may be imposed only if the court considers it reasonable and necessary in the circumstances, having regard to the following:

      (a) the history of the accused person (including the criminal history and particularly if the accused person has a criminal history involving serious offences or a large number of offences),

      (b) the likelihood or risk of the accused person committing further offences while at liberty on bail,

      (c) the extent to which compliance with the direction of a kind specified in this condition may unreasonably affect persons other than the accused person.
That subsection is presumably designed to address the Legal Aid Commission's concern that I just drew to the attention of the members. New subsection (5) provides that these conditions may be imposed only at the request of the prosecutor in the proceedings. That prevents a judicial officer from imposing the sorts of standard provisions they may impose as a matter of practice in a busy list. It requires the prosecutor to draw the matter to the attention of the court. Pursuant to new subsection (3), an enforcement condition has to specify the kind of directions, the circumstances in which each kind of direction may be given, and the underlying bail condition.

The bill has taken the middle ground in addressing the matters of concern raised by the Legal Aid Commission of New South Wales. This statutory organisation, which is responsible for representing young accused persons, including young Aboriginal offenders, throughout New South Wales in the tiniest of country towns and communities, is aware of the difficulties envisaged with laws of this nature. It is important that the House take note of the experienced solicitors effectively on the government payroll who are spread throughout this State.

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