BAIL AMENDMENT BILL 2004 Second Reading Speech

Northern Territory Second Reading Speeches

BAIL AMENDMENT BILL 2004

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Mr ELFERINK (Macdonnell): Madam Acting Deputy Speaker, I move that the bill be now read a second time.

Today I bring a small but significant amendment to the Bail Act that will provide authorised people, be they courts or police officers, to ask a person with a history of criminal activity to demonstrate why they should be given liberty when there is evidence from their past behaviour that the person struggles with the responsibility such liberty asks of them.

The right to be at liberty is the right of any innocent person. It is enshrined in the act and it captures some of the most fundamental principles of our criminal justice system. Custody is reserved for penalty or for one of the other reasons that bail may be refused.

The very existence of the Bail Act suggests that the right of a person to be at liberty is not absolute. There are circumstances in which a person who has a right to be at liberty may have that liberty restrained. The reasoning that a bailor may grant a bailee include the likelihood of the person committing an offence whilst at liberty, the need to seek counsel, issues surrounding domestic violence matters, and even the bailee’s own protection. In those matters, bail may be refused for summary or regulatory offences. It is unlikely considering the nature of those sort of offences but, nevertheless, it does fall within the realms of contemplation.

The amendment is aimed specifically at indictable offences. These are what the Criminal Code would refer to as crimes. There are three different types of offences in the Criminal Code: regulatory offences, simple offences and crimes. It is the latter category to which this amendment turns its attention. There are offences in the Bail Act in which the right to liberty is not automatic. The people who find themselves charged with murder, for instance, do not have a right to liberty. Quite to the contrary, they have to demonstrate that right to the person considering bail. From time to time, they may get it but, more generally, they may not. There are people in remand sections of our Territory gaols right now who stand convicted of nothing and have yet to face trial. Under such circumstances, a person may never have been convicted of any offence in their whole life but their liberty is still not given as a right. One might say for good reason.

Therefore, the reasoning for this bill is not unsound. It brings a person who has been convicted in the past of a crime repeatedly, a responsibility, should they find themselves charged with a similar offence again, to demonstrate why their liberty should be restored to them.

The Bail Act tries to reflect the real world. By its structure it acknowledges that the world is not a place of absolutes - not just black and white. Otherwise, it would be far shorter and would try to do a whole lot less than it does. Understanding this, the bill attempts to capture the flavour of the Bail Act and argues that, in the real world, a person who has been convicted three times in the past three years of an indictable offence of the same or similar nature has a habit. They could well be described as an habitual criminal. When such a person comes before an authorised officer, it is not only sensible that the authorised officer’s deliberation should include prior convictions - indeed they can and do - the bill shifts the focus slightly. It says that, if you have prior convictions, repeatedly for the same or similar offences, inside the Northern Territory or not and you are asking for bail again, then you have to show why you should be at liberty rather than an authorised officer having to find reasons why you should not be.

If a good reason for bail is made out to the balance of probabilities, then such bail may still be granted. However, we as a parliament should not blanche at the general proposition that if you are a repeat offender you are not automatically entitled to bail should you be charged again. In short, your past catches up with you. Most people manage to go through life without regularly being charged with indictable offences, let alone being convicted of them.

This bill affects those in our community who have repeatedly breached the trust of the community. If they then ask for the trust to be extended to them then they must demonstrate why. I commend this bill to honourable members.

Debate adjourned.

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