Bills

Bail (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 8 August 2017.)

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (15:25): I thank the members who have made a contribution, and I also thank those members who have already indicated their support for the measures in this bill. I understand the member for Schubert in the other place sought information from the Attorney-General with respect to applications for bail by persons who were prescribed applicants by virtue of a breach of the intervention orders act. The Attorney undertook to seek this information between the houses. I am advised that, unfortunately, for bail matters, a breakdown of statistics as requested is not kept in a form that allows this level of detail to be extracted.

The Hon. Mr Hood in his second reading contribution asked when and how the government was made aware of the matter to be addressed by the amendment of section 10A, and whether the government is aware of any instances in which this has been an issue. The government is aware of one instance where the amended charge resulted in the applicant no longer being a prescribed applicant, and a fresh application for bail was made. Despite the presumption in favour of bail, on the facts, the court determined that bail should not be granted.

With respect to the first part of the Hon. Mr Hood's question, the issue was brought to the government's attention by the Director of Public Prosecutions last year. I note that this is an important amendment that will ensure offenders who are alleged to have committed serious violent offences in circumstances aggravated by a breach of intervention orders are prescribed applicants.

I note that there are amendments filed by the Hon. Mr Darley. The government has been in discussions with the Hon. Mr Darley and the opposition and has filed an amendment in the alternative to Mr Darley's second amendment. I look forward to addressing these amendments during committee. Again, I thank honourable members for their contributions and support, and I look forward to dealing with this expeditiously.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 5 passed.

New clause 5A.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 3, after line 6—Before clause 6 insert:

5A—Amendment of section 10—Discretion exercisable by bail authority

(1) Section 10(1)(a)—before 'gravity' insert 'nature and'

(2) Section 10(1)(b)—after subparagraph (iii) insert:

(iiia) endanger the safety of victims, individuals or the community; or

(3) Section 10(1)—after paragraph (e) insert:

(ea) any special vulnerability or needs the applicant has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment; and

(4) Section 10(1)—after paragraph (f) insert:

(fa) the need for the applicant to be free to prepare for the applicant's appearance in court or to obtain legal advice; and

(fb) the need for the applicant to be free for any other lawful reason; and

(5) Section 10—after subsection (1) insert:

(1a) In having regard to the matters referred to in subsection (1)(b), the bail authority must consider the following:

(a) the applicant's background, including criminal history, circumstances and community ties;

(b) the strength of the prosecution case;

(c) whether the applicant has previously committed an offence while on bail;

(d) whether the applicant has a history of violence;

(e) whether the applicant has a history of compliance, contravention or failure to comply with any of the following:

(i) an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009;

(ii) a parole order under the Correctional Services Act 1982;

(iii) an order or condition of a bond under the Criminal Law (Sentencing) Act 1988;

(iv) a home detention order under the Criminal Law (Sentencing) Act 1988;

(v) a non-association or place restriction order under the Summary Procedure Act 1921;

(vi) a supervision order under the Criminal Law (High Risk Offenders) Act 2015;

(f) whether the applicant has any criminal associations;

(g) the length of time the applicant is likely to spend in custody if bail is refused;

(h) the likelihood of a custodial sentence being imposed if the applicant is convicted of the offence;

(i) the conduct of the applicant towards any victim of the offence or any family member of a victim, after the offence;

(j) the bail conditions that could reasonably be imposed under section 11 to address concerns of the bail authority in relation to the matters considered by it under this section;

(k) whether the applicant has any associations with a terrorist organisation (within the meaning of Part 5.3 Division 102 of the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth);

(l) whether the applicant has made statements or carried out activities advocating support for terrorist acts or violent extremism;

(m) whether the applicant has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.

Both of my amendments provide a more rigid framework for bail. The first amendment expands section 10 of the act, which outlines the matters the bail authority must consider before they release a person on bail and is modelled on the New South Wales act. At the moment, matters that must be considered are general in nature. My amendment spells out matters that must be considered before granting bail.

This includes matters such as any history of family violence, criminal history and whether they have any associations with terrorist organisations. The impetus for these amendments was the Burke Street Mall tragedy in Melbourne, where 16 people were killed by a person out on bail who had a known history of drug use, family violence and mental health problems.

Since then, we have also had a case in rural New South Wales where a man killed his former partner and then himself while out on bail. In January 2017, Teresa Bradford was stabbed to death by her former partner, who was out on bail for previously attempting to strangle her. In October 2014, Greg Anderson beat his son Luke to death while on bail. This case is well known due to the efforts of Luke's mother, Rosie Batty, who has campaigned against family violence. In September 2012, Jill Meagher was killed by a stranger as she walked home after a night out. Her killer was also out on bail.

While all of the above crimes were not committed in South Australia, the community would expect us as lawmakers to be proactive and amend the laws before something happens. I commend the amendment to the house.

The Hon. P. MALINAUSKAS: The government opposes this amendment. Amendment No. 1 amends section 10, proposing additional factors for the bail authority to take into account in exercising its discretion as to whether to release the applicant on bail.

As it stands, section 10 creates a presumption in favour of bail unless, having regard to certain factors, the bail authority considers the applicant should not be released on bail. It is therefore unnecessary for section 10 to prescribe factors that may favour the applicant being granted bail. Considerations of public safety will already be taken into account within the operation of section 10.

Existing factors, such as the gravity of the offence, the likelihood that the applicant will offend again or intimidate witnesses, and the requirement to give primary consideration to the victim's need for physical protection are factors that address public safety. Amendment No.1 also prescribes the consideration that the bail authority must have regard to in assessing the likelihood that the applicant would, if released, abscond, offend again, interfere with evidence, intimidate witnesses or hinder police inquiries. Some of the prescribed factors proposed by the amendment are either not relevant or create duplication or inconsistencies. The scope for additional appeal work for the Supreme Court, and the significant increase in work required to make a bail decision, also cannot be discounted.

Considerations relating to the applicant's involvement in terrorist activities or association with terrorist organisations is already being addressed in the Statutes Amendment (Terror Suspect Detention) Bill 2017, introduced into the House of Assembly on 20 June this year. In short, the amendment appears to be an attempt to transpose considerations from the relevant bail regime in New South Wales onto the South Australian statute books. As outlined above, the amendments are unnecessary and will only serve to create confusion.

The Hon. A.L. McLACHLAN: I indicate that the Liberal Party will not support the amendment, for the reasons set out by the government.

The Hon. D.G.E. HOOD: I indicate that the Australian Conservatives will support the amendment. We approve of the direction the Hon. Mr Darley is heading with them.

The Hon. K.L. VINCENT: In order to assist the chamber, the Dignity Party also does not support this amendment, for the reasons that have already been outlined, not because we do not appreciate the intent with which it has been moved.

New clause negatived.

Clause 6.

The Hon. J.A. DARLEY: I move:

Amendment No 2 [Darley–1]—

Page 3, after line 14—Section 10A(2), definition of prescribed applicant—after paragraph (e) insert:

or

(f) an applicant taken into custody in relation to a serious drug offence (within the meaning of section 34(2) of the Controlled Substances Act 1984) if it is alleged that the applicant poses a risk to public safety.

This amendment inserts a new provision, for which presumption against bail will apply. My amendment will see people who have been charged with a serious drug offence and who pose a risk to public safety have bail refused, unless they can establish special circumstances justifying their release on bail. As previously mentioned, this is in response to community outrage at a number of cases where people have committed offences, including murder, whilst they are out on bail. It is not something that is accepted by the community; nor should it be something that is accepted by this parliament.

The Hon. P. MALINAUSKAS: The government opposes this amendment, and I might outline its reasons for opposing this amendment before speaking to its own. Amendment No. 2 from the Hon. Mr Darley creates an additional circumstance in which a person is a prescribed applicant pursuant to section 10A; that is, a person will be a prescribed applicant if they are taken into custody in relation to a serious drug offence if it is alleged that the applicant poses a risk to public safety.

While the government appreciates what the Hon. Mr Darley is trying to achieve, the proposed amendment is inconsistent with other offences listed in section 10A, which establishes whether a person is a prescribed applicant solely on objective facts. This amendment requires a subjective assessment by the prosecutor that the applicant poses a risk to public safety in order to establish that the applicant is a prescribed applicant. Further, the allegation that the applicant poses a risk to public safety is not an allegation that forms part of the charge. This creates new complexities for bail decisions and is undesirable.

As I have already outlined in response to Mr Darley's amendment No. 1, the risk to public safety can be taken into consideration by the bail authority in making a determination on bail. In appreciation of Mr Darley's aim, the government has prepared a similar, alternative amendment, replacing the subjective element attached to amendment No. 2. I will speak to the government's amendment in due course.

The Hon. A.L. McLACHLAN: The Liberal Party has sympathy with the Darley amendment but will not be supporting it for technical reasons, as outlined by the minister. The Liberal Party will be supporting the next amendment that the minister will be moving.

The Hon. M.C. PARNELL: To offer a trifecta, the Greens' position is very similar. We understand what the Hon. John Darley is trying to do. There are some unintended consequences. When we look at the list of offences, there are some things which, whilst they might appear to be serious—there is a gradation of seriousness—an unintended consequence could be that someone who has not done very much at all has a presumption against them in relation to bail.

The minister has not yet moved his amendment, but I can foreshadow that because the minister has combined the requirement for both a serious drug offence and a serious offence against the person as being the trigger for the presumption against bail, I think that makes a lot more sense because it goes to the question of public safety, which is largely what bail is about—protecting public safety.

The CHAIR: I think it is probably time that you moved your amendment, minister.

The Hon. P. MALINAUSKAS: I think that is an outstanding idea, Mr Chairman. I move:

Amendment No 1 [Police–1]—

Page 3, after line 14—Insert:

(2) Section 10A(2), definition of prescribed applicant—after paragraph (e) insert:

or

(f) an applicant taken into custody in relation to both—

(i) a serious drug offence (within the meaning of section 34 of the Controlled Substances Act 1984); and

(ii) a serious offence against the person (within the meaning of section 74EA of the Summary Offences Act 1953).

Government amendment No. 1 is proposed as an alternative position to amendment No. 2 [Darley-1]. Proposed new section 10A(2)(f) provides that a person will be a prescribed applicant and a presumption against bail will operate, unless special circumstances are established justifying release, if the applicant is taken into custody in relation to both a serious drug offence, as defined in the Controlled Substances Act, and a serious offence against the person, as defined in the Summary Offences Act.

The definition of a serious offence against the person in the Summary Offences Act includes the offences of murder, manslaughter, sexual offences, criminal neglect and causing serious harm. It is the government's view that this alternative will support the Hon. Mr Darley's purpose in moving his earlier amendment while maintaining consistency with the remainder of section 10A(2) in establishing whether a person is a prescribed applicant solely on objective factors.

The Hon. J.A. Darley's amendment negatived; the Hon. P. Malinauskas's amendment carried; clause as amended passed.

Remaining clause (7) and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (15:39): I move:

That this bill be now read a third time.

Bill read a third time and passed.