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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-05-07 Daily Xml
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BAIL (DISCRETION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 October 2007. Page 1120.)

The Hon. S.G. WADE (22:17): I do not usually say that I am disappointed to get the call, but I am surprised that there is no government speaker listed on this bill today. I find it extraordinary that this bill has been before the council since October last year and, by current indication, we will not have a government speaker. The Hon. Dennis Hood has given us four weeks' notice that he would like to bring this matter to our consideration tonight, yet the government has not deigned to form a view. The practice of this council is that parties within the chamber cooperate in the management of the business of the council, and I am disappointed that the government has not seen fit to come forward.

The PRESIDENT: The Hon. Mr Wade has the duty to give us his view.

The Hon. S.G. WADE: But my concern, Mr President, is that I am not able to do that without the information to which only the government has access. Only the government can consult the magistracy and consider what the implications of this provision would be. Only the government can seek legal advice from the Crown Solicitor's Office and tell us what this bail discretion measure might involve. Only the government has access to the bureaucrats within the police administration to consider how this legislation might impact on the ground. Only the government can consult the Courts Administration Authority to see how the bill might work. Yet the government is not willing to engage in this debate. It has demonstrated petulance, as usual. It has decided not to contribute to the second reading. The government might well decide to contribute to clause 1, but what use is that? Those of us who are non-government members in the council will not have the opportunity, as is usual practice, for a government speaker to tell us what the wider implications of the bill are.

We know where this attitude comes from. It comes from the bully boys in the lower house. The Treasurer, Kevin Foley, this morning at a press conference, and in what was called a stunning broadside—in fact, members will notice that it was not a stinging broadside, because Foley's bully-boy tactics are hardly well timed or well placed—

The Hon. B.V. FINNIGAN: I have a point of order, Mr President.

The PRESIDENT: The Hon. Mr Foley.

The Hon. S.G. WADE: The Hon. Mr Foley. I take the point, Mr President. I do not need the Hon. Bernard Finnigan's help.

The PRESIDENT: Order! The Hon. Mr Finnigan has a point of order.

The Hon. B.V. FINNIGAN: Mr President, I would like your ruling on whether comments by the Hon. Mr Foley have anything to do with the Bail (Discretion) Amendment Bill that is before the council.

The Hon. S.G. WADE: There is a second half to the sentence, Mr President.

Members interjecting:

The PRESIDENT: I do not quite know yet whether they have, but so far the Hon. Mr Wade really has not directed any of his comments to the bill, but I think he might be getting there.

The Hon. S.G. WADE: The point of my comment is that, as non-government members, we would have thought that this government has learnt its lessons over the past two years and felt that on an issue as important as bail—after all, this is a government that says that it cares about law and order—it might deign to give the council advice. We have had this bill before the council since October last year. We have had four weeks to bring it on, yet the government is not contributing at the second reading. I hope that it will humble itself to make a comment on clause 1—how generous of it that might be! The arrogance of this government was shown this morning when the Hon. Kevin Foley (I am told that he is honourable), in relation to private member's business, said:

There is a quaint tradition in the upper house of this state. They spend a few hours on a Wednesday pontificating and rabbiting on about private member's issues that have little relevance to the goodness of the state, and we want that process scrapped this afternoon.

I suggest that if it has the view that bail is unimportant to the law and order of this state the government might tell us that; rather than staying silent on the second reading, stand up and tell us that bail does not matter to the people of this state. On our part, we are willing to engage the Hon. Dennis Hood's bill, and I now intend to do so. This bill was introduced by the Hon. Dennis Hood in October 2007 in an attempt to curb what he describes as the 'skyrocketing number of breaches in bail'. The Hon. Mr Hood highlighted figures that I think would support his argument of skyrocketing breaches in bail.

The Hon. Mr Hood advised that the number of breaches of bail has increased from 2,394 in 2001 to 8,202 in 2006-07. The Hon. Mr Hood is concerned that this is largely due to persons being granted bail, breaching that bail and then being granted bail again. Section 10 of the Bail Act 1985 lists the matters to be taken into consideration in determining whether bail should be refused. Section 10(1)(f) requires that a court have regard to 'any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement'. The Hon. Mr Hood's bill confirms that the provisions are not limited to breaches or alleged breaches of bail.

I am led to believe that we are going to ignore the normal processes of this chamber. In spite of four weeks' notice of a bill that has been on the Notice Paper for (forgive my maths) seven months, late advice is that the government is not even going to allow its progress as is normal practice. I continue with my comments, then. The Hon. Mr Hood confirms that the provision is not limited to breaches of bail on previous occasions but also includes any such breaches in relation to the current occasion. The amended section would read, '...the fact that the applicant may have contravened or failed to comply with a term or condition of a bail agreement (whether on this occasion or some previous occasion);'.

Family First intends that the amendment confirm the practice of some bail authorities and 'place a heavier onus on magistrates and other bail authorities to treat ongoing breaches of bail allegations much more seriously than is currently the case'. The opposition supports this goal. As I mentioned during my remarks, I understand that the government might deign to address this issue next week. I hardly see that that detracts from my basic complaint, which is that non-government MPs (including me; and I understand that the Hon. Mark Parnell may be considering making a contribution today) were forced to make a contribution without the benefit of a government contribution.

If the government does not deign to provide advice to the house from organs of government, perhaps the least it could do is to let us get briefings. I indicate that the opposition supports this bill.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (22:24): I will say a few words, because—

An honourable member interjecting:

The Hon. P. HOLLOWAY: Not at all. It is well known—

The Hon. S.G. Wade interjecting:

The Hon. P. HOLLOWAY: No; I do not have any advice at all. What I do know is that the matter of bail is something about which the Attorney has made quite clear he has been considering in some detail. He was looking at a whole response in relation to that. It is not necessarily that the government has any objection to the specific measures, but there is a lot more to the bail issue than just one thing.

I compliment the Hon. Dennis Hood on raising this issue. From questions and other issues in this place he has raised his concern about some of the apparent inconsistencies we get and I compliment him for his ongoing interest in that regard, but I am aware that the Attorney is looking at the whole issue in relation to bail and it is a matter of whether we should be waiting for a more comprehensive response from the Attorney as it is a complicated issue and there are many elements to bail. There is police bail and a number of issues in relation to the courts. I assure the honourable member that I will get a response from the Attorney before the next sitting week. The only reason the government has not dealt with this issue further is that I know the Attorney has been looking more broadly at the issue of bail.

The Hon. D.G.E. HOOD (22:26): I will briefly sum up, put the bill into committee and adjourn it from there. I thank the Liberals for their support. I can generally rely on them and thank them very much. I echo the comments of the Hon. Mr Wade. The bill has been on the Notice Paper for some time. I do not put these bills to the council lightly. It is a genuine attempt to make what I see as an improvement in the law. I look forward to the government's response on clause 1 on the next Wednesday of sitting.

This is a simple change to the Bail Act. Essentially it will raise the bar slightly in order for applicants to get bail. To put it in layman's terms, at the moment there is a presumption in favour of bail in the Bail Act. This amendment will allow that to continue, but if somebody has breached bail while on bail that would have to be considered by the judge in determining whether or not to grant bail again, and at the moment that is not the case.

Section 10(1)(f) is being changed. The current Bail Act provides 'that any previous occasions on which the applicant may have contravened or failed to comply with the term or condition of a bail agreement', and I propose to delete that and amend it so that it states 'the fact that the applicant may have contravened or failed to comply with the term or condition of a bail agreement, whether on this occasion or on some previous occasion'. So, if they have breached the bail they are on currently, that needs to be taken into account by the judge before deciding to grant bail again, in simple terms.

We see in the community, as the Hon. Mr Wade outlined very well from referring back to data I provided, that the incidence of breaches of bail is increasing substantially. Back in 2000-01 there were 2,394 breaches of bail; in 2001-02 there were 2,960; in 2002-03, 4,010; in 2003-04, 4,612; and, 2004-05, 5,729. There is a clear linear increase in the number of breaches of bail, but we are not seeing the courts respond in order to make it more difficult or to grant bail less often.

This amendment will change that and be another factor the judge will have to consider and, as a result, if somebody breaches their bail whilst already on bail that will need to be considered when the judge makes a decision to grant bail or not in that instance: simple as that. It is a serious problem and something that has been going on for some time. I will quote a couple of people who seem to be in support—maybe not specifically but generally—of this amendment. I wish to quote the Acting Police Commissioner's words, as reported in The Advertiser recently. He said:

If an offender has breached conditions intended to protect victims, then the assumption they should receive bail should no longer exist. The offender should have to prove why they deserve bail again.

Someone fairly influential—if not in this place, certainly, in the other place—the Premier himself, said recently:

While alleged offenders who have not yet been convicted are presumed innocent when given bail, frankly, at times it wears a little thin to see them hauled back before the courts for breaches of bail conditions only to be bailed again. In my book, these serial bail offenders blow their rights away by their own actions.

Those are the words of the Premier. This amendment to the Bail Act will go some way to fulfilling the point that he is making here and make it harder for people who breach bail to get bail again. I thank opposition members for their support. I have had indications of support from other members, and I thank them as well. I look forward to the government's contribution on clause 1.

Bill read a second time.

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