Northern Territory Second Reading Speeches

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BAIL AMENDMENT (REPEAT OFFENDERS) BILL 2005


Bill presented and read a first time.

Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time.

The purpose of this bill is to give effect to the government’s commitment to create safer communities by removing the entitlement to bail for those people who have had a history of serious repeat offending. Subject to certain limited exceptions, the Bail Act currently provides that a person is presumed to be entitled to be granted bail. This does not mean that bail must always automatically be granted. Rather, the act sets criteria for determining a grant of bail, including consideration of factors such as the likelihood of committing another offence while on bail. The court always retains discretion to deny bail to an offender. However, this bill specifically restricts the operation of the current presumption in favour of bail for certain repeat offenders. It also introduces a provision to allow for a decision of a magistrate or justice to grant bail to be stayed for a maximum period of three business days, the purpose of review by the Supreme Court.

The Bail Act already addresses in a limited way repeat offending with respect to serious violence. Section 8 of the Bail Act removes a presumption in favour of bail for an accused person who is seeking bail in relation to a charge of causing grievous harm, sexual intercourse without consent, or failure to comply with a restraining order under section 10 of the Domestic Violence Act, where the accused has already been found guilty of an offence of a similar nature within the last 10 years. Section 8 also removes the presumption in favour of bail for a person who commits an offence whilst on a suspended sentence unless the alleged offence is so minor that it is unlikely to be regarded as a breach.

This bill will extend the application of section 8 of the act to include the situation where a person is charged with a serious offence and that that offence is alleged to have been committed while the offender was on bail for another serious offence, and the offender already has a prior conviction for a serious violence offence within the last 10 years, or a serious offence within the last two years. Serious offences defined in the bill as any offence which attracts a penalty of five or more years' imprisonment. This amendment specifically targets person who have a history of serious offending and who offend in a similar manner whilst on bail.

Existing section 7(a) of the Bail Act sets out the offences for which there is a presumption against bail. The offences targeted at present are the most serious kind and include murder, treason, serious drug offences attracting a penalty of at least 7 years imprisonment, and certain Commonwealth narcotic offences. A person accused of any of these offences will be refused bail unless he or she can satisfy the court that bail should not be refused. The presumption against bail is a particularly heavy onus to discharge and one that is not usually overcome. Basically, the applicant must satisfy the court that there are special reasons above and beyond the ordinary arguments for favouring bail which justify a grant of bail in a particular circumstances of the case. This provision recognises the serious nature of the offences in question, the higher level of risk to the community and the increased risk of the offender absconding when released on bail.

The government believes that our bail legislation should reflect the importance of protecting the community from offenders who repeatedly commit serious violence offences and continue to offend whilst on bail. Under amendments to section 7A proposed by this bill, violence offenders can expect to be denied bail where they have a history of repeat serious violent offending.

There will be a presumption against the court granting bail where an offender is seeking bail for a serious violence offence and he or she is alleged to have committed that offence whilst on bail for another serious offence or another serious violence offence and he or she also has a prior conviction for a serious violence offence within the last 10 years or a serious offence within the last two years and at least two of the offences in question involve serious violence.

‘Serious violence offence’ is defined under the bill as covering the full range of offences against a person including sexual offences, homicide, grievous bodily or bodily harm, assault, robbery and assault with intent to steal where the offence in question attracts a penalty of five or more years imprisonment.

The provisions in this bill have been drafted to cover a wide combination of offences. To achieve this, the definition of ‘serious offence’ and ‘serious violence offence’ overlap insofar as they both cover offences that attract a penalty of imprisonment of five years or more. However, for the avoidance of doubt clause 5(5) of the bill makes it absolutely clear that where there are at least two serious violence offences involved, one of which is committed whilst on bail, the matter must be dealt with under section 7A as a presumption against bail.

In line with international and government policy regarding offending by young people, these amendments will apply to adult offenders only. This recognises that young offenders require quite different approaches and have quite different needs to those that apply in the case of adult offenders. It also recognises that one of the primary aims of an effective youth justice system is to prevent young people from moving on to becoming adult offenders. In recognition of the success of offender rehabilitation programs such as CREDIT and the importance of rehabilitation in controlling crime generally, the amendments will not affect the continued operation of any existing bail rehabilitation programs.

A provision has been inserted by the bill to allow the programs to be prescribed in the regulations and for the court, where a person is assessed as suitable for such a program, to be able to consider this option despite any applicable presumptions against bail.

Finally, Madam Speaker, the bill provides a stay of bail. The Bail Act already provides a process for reviewing bail decisions made by justices and magistrates, however this new provision will mean that where the prosecution indicates its intention to seek a review in the Supreme Court of a court’s decision to bail, the grant of bail will be stayed pending the outcome of the review. The result is that the accused person will remain in custody while the stay remains in effect. The bill requires any such review to be dealt with as expeditiously as possible, as the stay remains in place for a maximum period of three business days. The review is by way of a re-hearing of the bail application before the Supreme Court, and the court may vary the decision or make a substituted decision.

This legislation is intended to protect the community from known repeat offenders who commit serious crimes. In making amendments to such important legislation as the Bail Act, we are mindful of the balance between community safety and the rights of the individual. We believe that this bill addresses the issue of serious re-offending, while at the same time recognising that important balance.

Madam Speaker, that concludes my explanation of the bill. I have tabled the Explanatory Statement that accompanies the bill, and I commend the bill to honourable members.

Ms CARNEY (Araluen): Madam Speaker, prior to adjourning the bill, I wish to make a few remarks. I appreciate that the Attorney-General cannot speak in reply to this, but I would appreciate something that resembles an assurance that these bills will be debated before the next election. A nod, a nudge or a wink will be fine.

Madam SPEAKER: Member for Araluen, you are speaking to the bill, not about the election.

Ms CARNEY: If this bill, Madam Speaker, is not fully debated before the next election, it could be argued that it is nothing more than an election stunt.

Madam SPEAKER: Member for Araluen! I just said to you if you want to make comments on the bill, you may, but you must stick to the bill.

Ms CARNEY: I am coming to those comments, Madam Speaker. We have seen that there is invariably a difference between the bills, and this bill is no exception from a cursory glance of it, government presents and their media releases. In that regard, I note a great similarity to a bill that my colleague, the member for Macdonnell, introduced in October 2004. It was called the Bail Amendment Act. This government refused to support it. This bail act that we have today appears to mirror, in many respects, the concept contained in the member for Macdonnell’s bill. I note the Minister for Police has issued a media release today saying, in essence, that this bill is about repeat serial offenders who are caught committing another serious offence while on bail. The similarity to the bill the CLP introduced only months ago is startling.

In the member for Macdonnell’s speech he said, ‘this amendment is aimed specifically at indictable offences, namely serious offences’. He went on to say, ‘it brings a person who has been repeatedly convicted in the past of a crime, a responsibility, should they find themselves charged with a similar offence again, to demonstrate why their liberty should be restored to them’. And finally, he said, ‘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’. From even a cursory glance of the bill and listening to the comments of the Attorney-General, there are many similarities between what we proposed more than six months ago and this bill. It is an election stunt. I am, nevertheless, serious about, while I do not expect to receive it, receiving an indication from the Attorney-General that this bill, if he is fair dinkum about it, should be and will be debated before the next election.

I do ask that the bill be now adjourned but I seek leave to continue my remarks at a later time.

Leave denied.

Debate adjourned.

 

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