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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Statutes Amendment (Bail Authorities) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 20 February 2020.)

Mr ODENWALDER (Elizabeth) (12:21): I rise to speak to the Statutes Amendment (Bail Authorities) Bill 2020. My remarks will be brief. I indicate, as I believe I am supposed to, that I am the lead speaker and perhaps the only speaker from the opposition on the bill. I state from the outset that the opposition will be supporting this bill. It seems to me that there are two essential measures in the bill, both of which are perfectly reasonable, at least on the initial reading of the bill, and worthy of support.

I look forward to the member for Heysen's contribution. He always makes interesting contributions to the subject of bail, and I am sure this will be no exception. Bail has been coming up a bit this week, and it is a topic of interest to me. I hope that we can avoid the committee stage but I expect that the Attorney will make quite a lengthy summing up, as she sometimes does, and answer some of my questions there. We can probably avoid the committee stage in that process.

My understanding of the bill is that it does two essential things and that both of them were at the request of the Chief Justice. Perhaps the Attorney can confirm in her closing remarks that all of the measures herein were at the request of the Chief Justice. The first is simply a measure to fix some inefficiencies within the court case load system by making all courts essentially bailing authorities without any restrictions on that except what is bound within their own rules.

As I understand it from the briefings I had from the Attorney's staff, which were very good, this is mostly in relation to matters which are going between the Magistrates Court and the District Court. Excuse any misunderstanding, sometimes it is the language, but I understand that this commits a matter to the District Court, so to all intents and purposes that matter rests now within the purview of the District Court.

However, all applications for bail still need to be made under the current system by the Magistrates Court. This change, I understand, fixes that slight anomaly, that slight inefficiency, so that the District Court can now hear bail applications in relation to matters that have been committed to it from the Magistrates Court but have not actually reached it physically yet—if that is the correct term. The other matter that the bill addresses is a simple matter but is still fairly significant, I think. When a decision is made by the court to revoke a bail agreement, the bill changes the point at which that revocation takes place.

I understand that at the moment there is, at least arguably, a situation where if a court issues an order to revoke bail and issues a warrant for the arrest of a suspect, the revocation of that bail technically takes effect when that order is made. So at the moment there is arguably a situation where, between the point when the revocation order is made and the arrest is made—hopefully a very short period in most cases—there is technically no bail agreement in place and the suspect is, essentially, free.

This leaves open the risk to a suspect's victims in many cases, because bail agreements almost always, at least in the lower courts, have the stipulation that a suspect cannot contact a victim. This is about avoiding confusion; it is about the arguable situation where between the point of the order of revocation being made and the arrest being effected there will no longer exist that period where the suspect is under no bail conditions at all.

I am slightly confused by the use of the word 'unconditionally', despite the briefings I have received. Perhaps in the process of summing up the Attorney might address the matter of 'unconditionally' in the context of someone being released when it is found that there was, in fact, no breach. In the Attorney's own second reading she said:

There are occasions when a bail agreement is revoked and it is later established that no breach of the relevant bail conditions has in fact occurred. The amendments included in this bill provide for such circumstances. Where there has been no breach, the bail agreement is not taken to have been revoked and the defendant will be released unconditionally. 'Unconditionally' in this context means that no new bail conditions are imposed. However, the deemed revocation of the bail agreement is effectively preserved and the conditions of the original bail agreement will continue to apply.

My question to the Attorney, if we can avoid a committee stage, is that in her summing up she explain that word 'unconditionally' and explain the difference between the situation now and the situation after the enactment of this bill. The only effective change this bill has, that I can see, is that it addresses that short period of time, if indeed there is a period of time, between the order that the court makes that the bail is to be revoked and the arrest of such a person.

Perhaps this is due to my limited understanding of the Bail Act itself, but I want to understand what the situation is now if a suspect is arrested and it is found that the decision to revoke bail was in error, there was no breach. Is the subject, as is stated here, released 'unconditionally', whatever that means, or is the situation now that an entirely new bail agreement has to be entered into—which would, presumably, reflect the initial bail agreement?

I hope that makes some sense to the good people sitting in the box over there, because I genuinely want to know the answer to that question to avoid the committee stage. So there are two questions. One is the definition of the word 'unconditionally', and the other question is—and we understand this came as a request from the Chief Justice—whether this situation has actually arisen in any situation that the Attorney, Chief Justice or the Attorney's advisers are aware of or is this simply a pre-emptive tidying up of a technicality?

With those brief words and several questions, I indicate that the opposition intends to support this bill.

Mr TEAGUE (Heysen) (12:28): I am pleased to rise with some brief remarks in commending this bill to the house. It is true to say that we have had something of a walk through the Bail Act in recent days during the course of this sitting week. We have seen some changes made, and properly so, primarily to section 10A of the Bail Act in the circumstances of the global pandemic and the public health emergency where there are special reasons for making changes that are temporarily applied to assist the police in doing their important work. Here we see the operation of appropriate and necessary reforms to the process of bail and considerations of bail applications in this state.

While we are walking through bail and the way that it operates, I would make the observation that bail is one of those perhaps unusually transactional in nature statutes, in that it very much sets out the process by which an agreement between an individual and the state is made that is the subject of legislation. One might think that the body of statute in this state has that effect, in terms of setting out the broad range of obligations and rights and other regulation in the way that we conduct ourselves in the state. Bail, and the provisions of the Bail Act, is one that is uniquely and directly transactional in nature and proceeds on the basis of an application being made that is then considered within the discretion of the relevant bail authority.

This reform is taking a practical step to ensure that the bail authority is properly the court most conveniently before which the applicant finds themselves. It is more explicitly providing that the Supreme Court, the District Court and the Magistrates Court are all relevant bail authorities and, at relevant times, appropriately the court to which a bail application may be made. The operative provisions I will speak to in a moment.

I am glad that we are here. I am glad that we are back in the parliament this week, albeit in circumstances of social distancing, in terms of applying necessary constraints around our presence in this chamber and our presence in the parliament. But we are able to be here in these constrained circumstances so that we can get on with legislating for the emergency measures that are necessary to legislate for, as well as to get on with the ordinary business of parliament. It is important that we are getting on with that work while we are able to do so.

In that context, I would advert to my surprise that the member in this place who takes responsibility for matters to do with health saw fit, on a day earlier this week, to raise a point of order about the movement of members in this place as a procedural matter. I was the subject of that, and I thought it really passing quite surprising that a person with that particular responsibility did that in circumstances where there was obviously no endeavour to apply anything other than adherence to the social distancing arrangements that we have in place for the parliament, and out of respect for the broader community also, to do what we could to make sure that we are applying that.

It is an unusual time, and I think those of us in this chamber have been very conscious that we are dealing with circumstances that are unusual. I am very glad that we can be here. I am very pleased to participate in whatever necessary arrangements need to be applied for social distancing, and I am very pleased that we can debate these important reforms in a respectful and appropriate way.

The reforms that I wish to focus on, and I have referred to the transactional nature of a bail agreement, are caught up in clauses 4 and 5 respectively of the bill. Clause 4 would delete section 5(1)(b) to (d) inclusive and, as I adverted to earlier in my remarks, substitutes the District Court and the Magistrates Court—that is to go along with the Supreme Court—as bail authorities set out in that section. Really, it is paragraph (d) as it currently stands that causes the practical problem in most circumstances as I understand it, in that paragraph (d) as it presently stands means that bail applications default to the Magistrates Court for practical purposes. So, by sweeping away paragraphs (b) to (d) and the stipulations there and simply stating that the Supreme Court, the District Court and the Magistrates Court are relevant bail authorities, that matter is simplified.

Clause 5 then goes on to set out a new process altogether. In doing so, it replaces subsections (4) and (5) of section 6 of the Bail Act, which again at the moment has this problematic effect that, once a decision is made to issue a warrant, then the bail agreement is revoked. That is subsections (4) and (5) as it presently stands. The new process makes a considerable amount of sense, in that it gives the bail authority the discretion to take a number of steps but, relevantly, provides for the revocation of the bail agreement to apply at arrest rather than by way of machinery that is operating pursuant to a warrant for arrest being issued by the courts.

So all very sensible and, as members have referred already, this comes unsurprisingly at the request of the Chief Justice in the review of the way that these matters are administered in the routine way by the courts. It is anticipated that this will lead therefore not only to considerable improvement in administrative efficiency but, in a very practical way, will ensure that for the benefit of victims this is very relevantly at the centre of reasons for which a warrant for arrest will be issued in a lot of cases.

Victims can benefit from the certainty that the conditions that are the subject of the bail agreement will continue to apply until the person is arrested and therefore no longer in a position to pursue a course of conduct that might otherwise constitute a continuing breach of bail but for the operation of the current subsections (4) and (5)—so appropriate and desirable reform in this area. It is important perhaps to note as well that, being particularly transactional in nature, the applicant for bail makes the application at a time that may be appropriate. Usually it is at an early stage, but there is nothing to prevent an applicant making multiple applications or subsequent applications in the event that the applicant might be unsuccessful on the first occasion.

I think, as Justice Debelle observed at paragraph 95 in Webster v The State of South Australia [2003] SASC 347 (I think it is recorded in volume 87 of the State Reports), when that subsequent application comes, it would be unusual for that to occur, absent some material change of circumstances, from one application to the next, but there is nothing to prevent such an application from being made from a refusal or in other circumstances.

Unusually, transactional arrangements in circumstances where someone is possibly finding themselves appearing before different courts at different times are particularly practical in nature in that it is important to protect those who might otherwise be jeopardised by the conduct of someone who is subject to a bail agreement. It is also important to ensure that someone who would make a bail application or would make a subsequent bail application can do so, and can do so without having to navigate through the maze of the court structure.

To return to where I started, we have had a walk-through of sorts of the Bail Act this week. I have addressed what in my view is the importance of the temporary nature of amendments that we made earlier this week in response to the present emergency, and now we have the happy opportunity in the usual course of parliamentary business to go about implementing appropriate reforms to make sure that bail arrangements in this state can operate so as to most effectively protect and provide confidence to the public at large and also ensure that the dispensing of the business of managing these applications within the justice system can be done in the most optimal way.

As in all these things, I commend the engagement of the courts with the government in this way and, of course, the very diligent work of the Attorney in ensuring that there is a thoroughgoing and fruitful engagement between the courts and the government about how the practical administration of justice is proceeding. This is a very good example of the sorts of reforms that ought to be made. I commend the bill to the house.

Ms LUETHEN (King) (12:44): I rise to wholeheartedly support this amendment bill to introduce stricter bail laws to protect our community. I thank the Attorney-General for introducing these amendments. I think The Advertiser summed up the intent of this bill very well, with their headline, which read:

Idiots who assault frontline hospital staff and emergency workers to be denied bail in new SA crackdown on violence.

The presumption of bail will be reversed for offenders who assault emergency services workers and front-line hospital staff under our tough new measures proposed by the Marshall Liberal government. The presumption of bail is an important part of our legal system; however, there is an obvious heightened risk to the health and safety of our community at this time. Stricter bail laws are part of the Marshall government's strong plan to protect South Australians during the coronavirus pandemic.

In order to keep our community safe, we are broadening the range of offences where bail—it has been pointed out that I need to correct the bill I am talking about, so I will update the points I am making, which again are about the Attorney-General diligently making sure the community is protected. So, the background is that when a person is charged with an offence they may apply to the court for bail, and some offences have a presumption against the bill. However, bail allows the person to be released into the community before the trial (which is the point I was about to get to) or the next court hearing, and bail will be provided with a set of conditions the person must meet, and this will include things like no contact with the victim, no internet access and areas they must not attend.

Currently, the Magistrates Court hears most bail applications. The trials for many offences, specifically on the more serious scale, occur in the District Court or the Supreme Court. This bill does two things. It expands who may hear the bail applications to the District Court and the Supreme Court. First, this means that, should the defendant already be appearing in one of those higher courts, their bail application can be heard there also. This ensures that the file does not need to move back and forth between the different courts, and therefore should provide more efficient justice.

It changes the point where the bail ceases after a breach of bail, and currently a person may breach their bail conditions by not abiding by the conditions the court has set, for example, by contacting the victim. Should this occur, the court issues a warrant for the arrest of the person. The police seek out the person and return them to custody for a future court date to hear the breach of bail issue. Once the court issues a warrant under the current laws, the bail conditions cease. Technically, this means that any further breach after this time could occur and not be a breach of bail and therefore be unable to be considered by the court—only the initial breach.

The bill changes the point at which the bail conditions cease. The bill will move that this time it will only cease once the person has been arrested by the police and is therefore in custody, removed from further breaching conditions. For victims specifically, this is crucial. The victim may be at risk while the police are attempting to locate the person on bail. For domestic violence victims specifically, this is a concern and we should do all we can in our power to keep them safe.

While generally police arrest breaches of bail quickly, this bill avoids any gap in time between warrant and arrest where contact with victims could occur. The victims' rights commissioner has stated that the bill is a common-sense change, in that it will protect the victim by having the conditions remain until arrest and also streamline the process. I thank the Attorney-General for her diligent work and commend the bill to the house.

Dr HARVEY (Newland) (12:49): I rise in support of the Statutes Amendment (Bail Authorities) Bill 2020. I would very much like to commend the Attorney for her work in this area, as others have spoken about. This is the second way we are dealing with bail in recent weeks, and this bill before us today deals with two important areas. In general, I would very much like to commend the Attorney for all her work in her portfolio: the people of South Australia are certainly very well served.

The bill before us today amends the Bail Act 1985 to achieve two primary aims: firstly, to improve the efficiency of the process for hearing bail applications before the court and, secondly, to change the point at which bail ceases after a breach of bail from the point at which the court makes the order to the point at which the person is arrested.

Specifically, part 2, clause 4 of the bill amends the Bail Act 1985 to make the District Court and Magistrates Court general bail authorities. Parts 3, 4 and 5 amend the Magistrates Court Act 1991, the District Court Act 1991 and the Supreme Court Act 1935 to provide the courts with express power to make rules relating to bail applications. Any necessary limitations on which court a bail application ought to be heard by will be provided within the rules of the court instead of the legislation. This change really aims to improve efficiency in the justice system and our courts. These amendments will allow for bail applications made between committal and arrangement to be heard by the District Court. This is the most efficient way of resolving the issue and improving the management of cases.

In addition to this key amendment, the bill also makes a further important amendment to the Bail Act, which serves to close off a particular gap and protect witnesses and victims of crimes. Specifically, clauses 5, 7, 8 and 9 of the bill respond to the issue of breaches of bail conditions occurring after a bail agreement has been revoked. Ordinarily, what occurs when bail is granted is the bail agreement will set out a number of conditions. An obvious and frequently applied condition is that there are individuals or a number of people that the defendant must not approach or contact whilst they are on bail. Clearly, this will often include witnesses or an alleged victim. What may occur in an alternative circumstance where that condition is not applied is that these people would be vulnerable to being harassed or intimidated.

The problem under the current arrangements is that, when a bail agreement is revoked, a defendant's right to be at large is revoked, but so are the conditions to that bail agreement at that point in time. Therefore, any breach of the conditions after the point at which bail is revoked—that is, when the court makes that order—no longer constitutes an offence under the act.

In light of this gap, the amendments before us today will change the point at which bail is revoked from the point at which the court makes the order to the point at which the person is arrested. Specifically, sections 6, 18, 19A and 19B of the Bail Act 1985 will be amended by the bill before us to change the point where bail is revoked from a court order to the point of arrest, and clause 5 is drafted so that the power of a court to revoke a bail agreement immediately is reversed.

There are times when a bail agreement is revoked but it is later established that the conditions of that bail agreement were not actually breached, and this bill will address that situation as well. Where this is the case, the bail agreement is taken to have been revoked and the defendant will be released unconditionally, which in this context means that no new bail conditions are imposed. However, the deemed revocation of the bail agreement is effectively preserved and the conditions of the original bail agreement will continue to apply.

This bill does two very important things. The first thing, which is consistent with a commitment that the Marshall Liberal government took to the election, is to improve the efficiency of our courts system, but another very important issue that we have addressed in a wide variety of different ways is to ensure that we are protecting people within our community, in this case in particular victims and witnesses. I commend the Attorney for all her work in this area and commend the bill to the house.

Mr COWDREY (Colton) (12:54): I, too, rise to speak to the Statutes Amendment (Bail Authorities) Bill 2020 and, in the same vein as many members who have contributed so far, I do so to support the bill. I do so on a number bases: first, that this is a commonsense approach and change that is being suggested; secondly, that it protects victims' rights and provides an extended opportunity for bail conditions to protect victims; and, thirdly, that it has the support of the courts and also the Commissioner for Victims' Rights.

I will not go into too much detail on the bail process, as it has been made clear by many members so far, but it is important to reflect on when the conditions are set on a person's bail and when those are potentially breached. They are really the crux of the changes that are proposed by this bill. In essence, the bill proposes to do two key things. First, it effectively expands who may hear bail applications to the District and Supreme courts. I think everybody in this place would be aware that the vast majority of bail applications are processed through the Magistrates Court, but there are on occasion situations where people are before different courts at the same time and therefore there are occasions where applications are heard at higher levels.

This also does mean that files are at times processed between the courts, which in all reality does fit very well with the broad reform agenda of this government to improve the efficiency of the courts here in South Australia, but I think more broadly in the approach that the Courts Administration Authority has taken more generally over a longer period of time to improve efficiency and lower costs imposed to those who are seeking to make applications.

If we look more broadly, I think in the bill yesterday we discussed the Civil and Administrative Tribunal (SACAT) introduction, the broad agenda that it now looks over and the tranches that came into place to move jurisdictions to that tribunal. They are, in many ways, evidence of a larger reform agenda to improve the efficiency of our court system. This small but important change certainly fits within that reform agenda to ensure that we have efficiency within those jurisdictions.

As has been discussed already, this bill effectively changes the point where bail is revoked from somebody who has entered that transactional agreement with the state. It is obviously an incredibly important thing that we do not put victims at any greater risk than they need to be. Where breaches of bail are often seen is in contact with those who are not allowed under the conditions of the bail agreement and, in particular, domestic violence victims. That is a specific concern for some victims.

Generally, it is also acknowledged that, when a bail application is revoked and when there has been a breach of bail conditions, the police issue a warrant and arrest a person, and the period of time between that warrant being issued and the arrest is generally very, very small, but there are some occasions when that is not the case. Having this commonsense approach, having this bill put before the house today, I think is a commonsense and useful change for our state, for our court process and further protects victims in this state. I certainly put forward my support to the Statutes Amendment (Bail Authorities) Bill 2020.

Debate adjourned on motion of Hon. V.A. Chapman.

Sitting suspended from 12:59 to 14:00.

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