Bail (Miscellaneous) Amendment Bill

Ms CHAPMAN ( BraggDeputy Leader of the Opposition) (11:11): I rise to speak on the Bail (Miscellaneous) Amendment Bill 2017, introduced by the Attorney-General on 31 May—not to be confused with the speech just given by the Attorney in respect of amendments to the Bail Act bill, which relate to terrorism matters. This is a bill that amends the Bail Act to deal with some relatively minor matters that need the statutory attention of the parliament.

As members know, the Bail Act: 

  • sets out the provisions for the circumstances where bail agreements and guarantees apply;
  • identifies the format for applications for release on bail, that is, when somebody is pending a trial and/or sentencing and they are granted the right to remain at large and not in custody;
  • sets out the processes for review of any decisions by a police officer or the courts to grant bail; and
  • sets out the enforcement and termination circumstances that are to apply for bail.

So, it is a discrete piece of legislation that is important to ensure that those who are awaiting sentence or trial are able—usually under certain conditions—to remain at large, and it is a matter where the seriousness of the allegations and charges against the party are taken into account. 

Over the years, and certainly in the time I have been here in parliament, the Bail Act has come under scrutiny from time to time, particularly to identify public disquiet and response, particularly negative response, to persons who have, usually, committed an offence or some other act of misconduct while on bail. Most notably in the time I have been here, it has been the reversal of the presumption of bail whilst a case is pending in circumstances where somebody has harmed another using their motor vehicle. 

Death by dangerous driving, manslaughter and escaping the pursuit of police are all the types of offences where someone who is on bail and committing these crimes (or is at least a suspect) needs to overcome a threshold of the reversal of onus in respect of presumption of bail that currently applies. Others include when the accused is a serious organised crime suspect, or where there have been allegations, violence or threats contrary to an intervention order. So, the public have said, in respect of a death using a motor vehicle as the lethal weapon, or where there is serious organised crime involved, or where there is a breach or potential breach in respect of domestic violence, which is protected under our intervention order procedures, these are the types of offence of which the accused needs to be able to establish why he or she should not be in custody, rather than the reverse. 

On the other hand, of course, bail is there, generally, to recognise the fact that someone who is awaiting a trial is innocent until proven guilty, and that is a factor that needs to be taken into account. Certainly in the time I have been here, there has been a tightening of mandatory conditions on bail. The possession of a firearm, for example, is strictly prohibited. The requirement for a party to submit to a test historically has been in respect of gunshot residues, and an accused may need to submit to a forensic assessment. There is the requirement that they not leave the state in respect of certain offences and the like. 

Other categories of discretionary conditions, most commonly that the accused is to remain not just within the state of South Australia but is to reside at a certain address and not to approach certain persons, particularly if they are witnesses in the case or victims, are important factors to be considered. At times, police deal with the question of bail and release a person once charged, pursuant to the authority of the bail granted by the police officer. Most commonly, for more serious offences, they are dealt with by a court, usually the Magistrates Court. 

I just mention in this circumstance that earlier this year there was a call for a nationwide review of our bail laws arising out of a deadly car attack. Criticism was made then of the use in Victoria of the volunteer bail justice procedure which, by its nature, identifies that the bail justices are in a voluntary capacity, not necessarily legally trained, and the like, and therefore there was, generally, public outrage about this. I am pleased to say that in South Australia we do not have that system: we do not use volunteer bail justices, and nor should we. 

It is a sobering reminder, notwithstanding that Senator Xenophon for our state, at the time demanded that there be a nationwide review. Clearly, South Australia should not have been called into the requirements of that and, as we often see, it has now disappeared to nothing. Other events relating to alleged terrorist attacks, and the like, have heightened the need for consideration of bail and parole, and the Attorney introduced a bill subsequent to the COAG meeting recently at which the Prime Minister, and in general terms the states represented by the premiers, acknowledged the need to review laws in this area. 

These matters are in another bill; they are discrete. Two aspects particularly of the bill are to add a category for prescribed applicants into section 10A. We are advised, and we accept, that court and prosecution time, particularly police time, will be saved by having only one proceeding where the complainant is subject to give evidence only once. 

There are situations where someone might be charged with a serious offence to be dealt with in the District Court but there might be a separate breach alleged in respect of an intervention order, which would ordinarily be dealt with in another court. This will ensure that, in respect of the offences that carry a presumption against bail, that will be applied to both and will remove any uncertainty surrounding any attempt to use the proceedings in one court to avoid the presumption against bail. 

The second area is to remove the option of seeking a telephone bail review. We are advised, and we accept, that this avoids the circumstances—although unlikely, we suggest—where a party could obtain bail on a telephone interview. At least in these cases the magistrate is sitting in court and there is an ability to seek a bail inquiry report and information about the attitude of the complainant. 

Finally, the Attorney has advised us that for some time now courts have not been sitting on Saturday mornings—more's the pity. We used to clean out the courts pretty quickly and deal with bail and court matters on Saturday mornings after the Friday night arrests. I thought it was done in a fairly expeditious way. In any event, it appears that is not available, so we need legislation to ensure that we deal with the definition of 'working day', which has, until this bill, included a Saturday within the definition. Obviously, the obligation to bring someone in custody before the court on the following working day needs to be accommodated accordingly. 

I am advised, and we accept, that there are no pending cases involving any complaint/seeking of redress from any party who might feel aggrieved by the continuation of this definition and therefore the exclusion from being brought before the courts. In those circumstances, we are agreeing to that, and in particular that the no-liability clause, whilst we consider it to be remote if there are no known cases for failure, is a matter that is prudent. For that reason, we accept it, though I reinforce the principle that, according to this side of the house, there has to be a good reason why a matter should be acting to the effect of any reform that is retrospective or which attempts to exclude someone's rights by this type of no-liability approach. With that contribution, we indicate that we consent to the bill.