BAIL AMENDMENT BILL 2014
Second Reading
Debate resumed from an earlier hour.
Mr BRAD HAZZARD (Wakehurst—Attorney General, and Minister for Justice) [4.22 p.m.], in reply: I begin by thanking the Bail Monitoring Group, consisting of representatives of police, the Attorney General's department, Legal Aid NSW, the Department of Premier and Cabinet and other senior officials, which has met on a number of occasions and considered in great depth various issues as we have developed further responses to concerns about bail legislation in this State. I also thank former Labor Attorney General John Hatzistergos, a very well respected member of the New South Wales Bar, who has done a great job working with the Bail Monitoring Group and a range of other interested parties to make recommendations to the Government as part of the very significant review that has led to the Bail Amendment Bill 2014. I also thank the members from the electorates of Liverpool, Tweed, Heffron, Heathcote, Balmain, Campbelltown, Sydney, Granville, Lake Macquarie, Myall Lakes and Camden for their contributions to this debate.
The member for Liverpool asked about the operation of the show cause model, which is at the heart of the amendments contained in this bill. I can inform the member that for show cause offences the onus will be reversed and the accused will have to demonstrate why bail should not be refused. If the accused can show cause why the detention is not justified the bail authority will still have to decide whether they would present an unacceptable risk if released from custody. If they would present an unacceptable risk, then bail must be refused. The show cause requirement will therefore operate as part of the process in making the bail decision, which includes a risk assessment. This will mean that an accused charged with a show cause offence will have to overcome the hurdle of demonstrating that detention is not justified and be subject to the unacceptable risk test before bail can be granted.
I stress that they will have to address both issues—namely, to show cause and to address the unacceptable risk test. Both Victoria and Queensland have show cause requirements in their bail legislation. Courts in those States have noted the circumstances that may be relevant to determining show cause include the strength of the prosecution case, preventable delays and urgent personal situations such as the need for medical 258 LEGISLATIVE ASSEMBLY 10 September 2014 treatment. Bail authorities in New South Wales will be informed by the approach taken in Victoria and Queensland. The member for Liverpool also asked what constituted a bail concern. The bill provides clear guidance as to what constituents a bail concern.
Mr Ron Hoenig: Tell us without reading it.
Mr BRAD HAZZARD: I could if you want me to. The concern must relate to the accused failing to appear in proceedings for the offence, committing a serious offence, endangering the safety of victims or the community, or interfering with witnesses or evidence. These are the same matters that the unacceptable risk test under the existing Act considers. Therefore, police and the courts already have significant experience in assessing them. The Hatzistergos review did not recommend further defining what constitutes a bail concern. In relation to the new factor related to criminal associations in section 18 of the bill, a person's criminal associations will be relevant where they have a bearing on the bail—being a concern that the accused will fail to appear, commit a further offence, endanger the safety of the community or interfere with the witnesses.
The member for Heffron raised the presumption of innocence, as I think did the member for Sydney. The presumption of innocence and the general right to be at liberty are, of course, fundamental principles of the common law. The reforms in this bill will not operate to exclude consideration of these principles in bail decision-making. However, the review acknowledged concerns that the placement of these principles in the purposes provision of the Act may result in them operating as controlling factors in bail decision-making and thereby exclude other key principles. The review noted that they should be considered in conjunction with other key principles such as protecting the community and preserving the integrity of the justice system. Consequently this bill enshrines the common law presumption of innocence and the general right to be at liberty in the preamble of the Bail Act along with the need to ensure the safety of victims of crime, individuals and the community, and the need to ensure the integrity of the justice system.
There have been further concerns raised by some police and some representatives of the police, being the Police Association of NSW. This is obviously an extremely challenging and difficult area of the law and there is a range of views across the community, the legal community and the Police Force. The Government intends that some of the remaining concerns, particularly of the Police Association of NSW, will remain under consideration. At the moment what has been presented to the Parliament implements clearly the recommendations of the review undertaken by John Hatzistergos. The Government has always envisaged that there will be further consideration given to the issues as they evolve.
The historical overview of bail provisions for the past 30 years indicates that there is always an evolution and there may, from time to time, be further amendments required. But, in order to carefully and rationally determine what further amendments might be required, time is now required to allow these proposals in this bill to settle in. I propose on behalf of the Government that any further suggestions that have been received respectfully from the Police Association of NSW or elements of the Police Association of NSW will be considered through the appropriate avenue of the NSW Sentencing Council. It seems to the Government that the NSW Sentencing Council can over the next six months or so—although it may take a little longer—objectively and dispassionately consider those changes and determine whether anything further is required.
I indicate to the representatives of the Police Association of NSW who have raised further issues that those issues have also been raised with the reviewer—that is, Mr John Hatzistergos. The Government accepts the recommendations from Mr Hatzistergos that no further changes are required at this point. But we certainly will be continuing the work of the Bail Monitoring Group and we certainly will be referring the issue to the NSW Sentencing Council to ensure that the detail that is required in such an intricate and complex framework of law is further considered.
I note in that regard that as Attorney General I attended the Bail Monitoring Group and listened to the concerns being expressed around the table. I can certainly assure the community that the viewpoints that were expressed by the police, by the Department of Attorney General and Justice, by Legal Aid New South Wales, and by the representatives of the Department of Premier and Cabinet, amongst others, certainly sought to balance the community interest and to ensure that the safety of the community was first and foremost whilst at the same time respecting the prima facie right of individuals to have their liberty until they are convicted.
Finally, I note that the bill will now proceed to the upper House, with significant amendments proposed to the Bail Act 2013 to consolidate the unacceptable risk test and to introduce the show cause requirement to which I have referred for certain serious offences as defined in the bill. As I said, the proposed amendments will 10 September 2014 LEGISLATIVE ASSEMBLY 259 give effect to all of those recommendations that were made by Mr John Hatzistergos. I can certainly be assured that this bill, in making amendments to the Bail Act 2013, will strengthen New South Wales bail laws and ensure that the police and the courts give the protection of the community the appropriate weight when making bail decisions. I commend the bill to the House.
Question—That this bill be now read a second time—put.
Division called for and Standing Order 181 applied.
Noes, 3
Mr Greenwich
Mr Parker
Mr Piper
Question declared resolved in the affirmative.
Motion agreed to.
Bill read a second time.
Third Reading
Motion by Mr Brad Hazzard agreed to:
That this bill be now read a third time.
Bill read a third time and transmitted to the Legislative Council with a message seeking its concurrence in the bill