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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bail (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 31 May 2017.)

Ms CHAPMAN (Bragg—Deputy 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.

Ms COOK (Fisher) (11:23): I would like to speak today in support of the Bail (Miscellaneous) Amendment Bill. The bill makes various changes to the Bail Act; however, I would like to focus my attention on one of the changes that will better protect victims of domestic violence. From the outset, I would like to note that this government is committed to changing the community attitude towards domestic violence. This commitment saw the release of the Domestic Violence Discussion Paper by the Attorney-General and the Minister for the Status of Women on behalf of the state government in July 2016.

Amongst the many issues raised in the discussion paper, eight key topics were presented for consultation. These included the development of a domestic violence disclosure scheme, how comprehensive data on domestic violence perpetrators can be collected and most effectively used and whether videos recorded by police at a domestic violence scene should be accepted as evidence in court. The Social Development Committee was privy to some compelling video evidence that had been put before judges, which I found both moving and deeply disturbing in relation to how we view evidence from these victims.

I understand that during the four-week consultation on the discussion paper, the government received an enormous amount of feedback on the issues raised. This is indicative of the importance of this issue to the South Australian community. I would also like to thank the people who have continued to contact my office and me personally regarding this very important issue. I continue my commitment to support them in my role in parliament.

I applaud the Attorney and the Minister for the Status of Women for this piece of work that has shone a light on the extent of domestic violence in our state along with the lobbying of community organisations and victims groups. It will provide the foundation needed to combat domestic violence, and I look forward to the government's proposals for reform that will arise from this consultation.

Regarding the amendments before us today, in 2011 the government made amendments of a similar nature to the Bail Act, setting out that, if an accused were taken into custody on charges of breaching an intervention order, there would be a presumption against bail if the alleged breach of the intervention order involved physical violence or the threat of physical violence. However, in some cases, the breach of the intervention order is an aggravating feature of the offence and the separate offence of breaching the intervention order is not charged.

This is where these amendments will come into play, ensuring that there is a presumption against bail for these accused. Protecting victims of domestic violence is of the upmost importance. These amendments will ensure that, when an offender is taken into custody for a violent offending in breach of an intervention order, there will be a presumption against bail. From a victim's point of view, the entire legal process regarding domestic violence offending can be stressful and emotionally draining, especially in the case of bail hearings, where victims face the prospect of a perpetrator being released on bail.

While I acknowledge the important work of South Australia Police and the Department for Correctional Services in their robust supervision of these offenders while on bail, the emotional toll on victims and their families cannot and must not be ignored. I strongly support the bill and commend it to the house.

Mr KNOLL (Schubert) (11:26): I rise to make a brief contribution to the Bail (Miscellaneous) Amendment Bill 2017 and to outline that the bill amends the act in three fairly simple ways. The first is to essentially make sure that under section 10A, which is the part of the Bail Act that deals with the presumption against bail and the offences for which presumption against bail is applicable, there is not duplication where somebody needs to have a bail hearing under the breach of their intervention order and also how that relates to the head charge or the charge for which they were originally brought before the courts. This helps to streamline the process to ensure it is as simple as possible.

The second amendment relates to the removal of seeking a telephone bail review. Again, this is fairly uncontroversial because it is likely not to be used, but it is common sense nonetheless. The third is to exclude Saturday as a working day for the purposes of the act. Even though it has not been used for some time, we are cleaning this up.

Interestingly, in researching this topic I looked through section 10A to understand the offences where there is a presumption against bail. As the member for Bragg rightly pointed out, a lot of them relate to motor vehicle offences, especially manslaughter, death or serious harm, but also acts endangering life. Essentially, where that offence, or part of that offence, constitutes the use of a motor vehicle in the alleged act of the offence, there is a presumption against bail. There is a presumption against bail in relation to blackmail and threats or reprisals relating to officers in judicial proceedings and public officers and also in relation to bushfire and serious firearms offences.

The most interesting part—and I think the member for Fisher talked about this—was around the breach of an intervention order, which I suppose is when somebody has been charged with a domestic violence offence and there is an intervention order placed upon them, and they breach that by alleging to have constituted an offence involving physical violence or the threat of physical violence. I can understand very much the need for that and am keen to ask the Attorney in committee how often that provision is used, especially given the fact that in the second reading what we are essentially looking to do here is to tighten up the Intervention Orders (Prevention of Abuse) Act where breaches involve violence or the threats of physical violence.

Again, on this side, we are supporting this bill, but we have a simple question to understand. At the moment, domestic violence is something that the government and the opposition are working together on to try to reduce its prevalence within our community. We are keen to understand how often that provision is used and how effective it has been in helping to prevent further violence in our community.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:30): I thank everyone who has made a contribution. I also acknowledge and thank the opposition for their indication of support for these measures. In respect of the question asked by the member for Schubert, I do not have that information at my fingertips, but I have spoken to my advisers just now and we will attempt to get that answer for the member for Schubert between here and the other place. With those few words, it would be nice if we just moved forward to the next item of business.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. J.R. RAU: I move:

Amendment No 1 [AG—1]—

Page 2, line 9 [clause 3(1)]—Delete 'Part 2 of' and substitute: 'Subject to subsection (2),'

There is an amendment we have foreshadowed here. It is a very minor drafting matter. It was brought to my attention. I did not even recall it, it is that minor. It was brought to our attention by parliamentary counsel. It is merely a tidying up. It does not change any matter of substance. I think the deputy leader has been briefed on the matter.

Ms CHAPMAN: I have been briefed, and we consent.

Amendment carried; clause as amended passed.

Clause 4.

The Hon. J.R. RAU: I move:

Amendment No 2 [AG—1]—

Page 2, lines 12 and 13—Delete clause 4.

Clause negatived.

Remaining clauses (5 to 8) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:35): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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