Northern Territory Second Reading Speeches

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BAIL AMENDMENT (REPEAT OFFENDERS) BILL (NO. 2) 2005


Information :
Bill presented and read a first time.

Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill now be read a second time. The purpose of this bill is to give effect to the government’s commitment to create safer communities by removing the entitlement to bail for those people who have a history of serious repeat offending. Subject to certain limited exceptions, the Bail Act currently provides that a person is presumed to be entitled to be granted bail. This does not mean that bail must always automatically be granted, rather, the act sets criteria for determining a grant of bail, including consideration of factors such as the likelihood of committing another offence while on bail. The court always retains discretion to deny bail to an offender. However, this bill specifically restricts the operation of the current presumptions in favour of bail for certain repeat offenders. It also introduces a provision to allow for a decision of a magistrate or justice to grant bail to be stayed for a maximum period of three business days for the purpose of review by the Supreme Court.

The Bail Act already addresses, in a limited way, repeat offending with respect to serious violence. Section 8 of the Bail Act removes the presumption in favour of bail for an accused person who is seeking bail in relation to a charge of causing grievous harm, sexual intercourse without consent, or failure to comply with a restraining order under section 10 of the Domestic Violence Act where the accused has already been found guilty of an offence of a similar nature within the last 10 years. Section 8 also removes the presumption in favour of bail for a person who commits an offence whilst on a suspended sentence unless the alleged offence is so minor that it is unlikely to be regarded as a breach.

This bill will extend the application of section 8 of the act to include a situation where a person is charged with a serious offence and that offence is alleged to have been committed while the offender was on bail for another serious offence and the offender already has a prior conviction for a serious violence offence within the last 10 years or a serious offence within the last two years. ‘Serious offence’ is defined in the bill as: ‘Any offence which attracts a penalty of five or more years’ imprisonment’.

This amendment specifically targets persons who have a history of serious offending and who offend in a similar manner whilst on bail. Existing Section 7A of the Bail Act sets out the offences for which there is a presumption against bail. The offences targeted at present are the most serious kind and include murder, treason and serious drug offences attracting a penalty of at least seven years imprisonment, and certain Commonwealth narcotics offences. A person accused of any of these offences will be refused bail unless he or she can satisfy the court that bail should not be refused. The presumption against bail is a particularly heavy onus to discharge and one that is not usually overcome. Basically, the applicant must satisfy the court that there are special reasons above and beyond the ordinary arguments favouring bail which justify a grant of bail in the particular circumstances of the case. This provision recognises the serious nature of the offences in question, the higher level of risk to the community and the increased risk of the offender absconding if released on bail.

The government believes that our bail legislation should reflect the importance of protecting the community from offenders who repeatedly commit serious violence offences and continue to offend whilst on bail. Under amendments to section 7A proposed by this bill, violent offenders can expect to be denied bail where they have a history of repeat serious violent offending. There will be a presumption against the court granting bail where an offender is seeking bail for a serious violence offence and he or she is alleged to have committed that offence whilst on bail from another serious offence or another serious violence offence and he or she also has a prior conviction for a serious violence offence within the last 10 years or a serious offence within the last two years and at least two of the offences in question involve serious violence.

‘Serious violence offence’ is defined under the bill as covering a full range of offences against the person, including sexual offences, homicide, grievous harm or bodily harm, assault, robbery and assault with intent to steal where the offence in question attracts a penalty of five or more years imprisonment.

The provisions in this bill have been drafted to cover a wide combination of offences. To achieve this, definitions of ‘serious offence’ and ‘serious violence offence’ overlap insofar as they both cover offences which attract a penalty of imprisonment of five years or more. However, for the avoidance of doubt, sub-clause (5) of Clause 5 of the bill makes it absolutely clear that where there are at least two serious violence offences involved, one of which is committed whilst on bail, the matter must be dealt with under section 7A as a presumption against bail.

Madam Speaker, in line with international and government policy regarding offending by young people, these amendments will apply to adult offenders only. This recognises that young offenders require quite different approaches and have quite different needs from those that apply in the case of adult offenders. It also recognises that one of the primary aims of an effective youth justice system is to prevent young people from moving on to become adult offenders.

In recognition of the success of the offender rehabilitation programs such as CREDIT and the importance of rehabilitation in controlling crime generally, the amendments will not affect the continuing operation of any existing bail rehabilitation programs.

A provision has been inserted to allow for programs to be prescribed in the regulations and for the court, where a person is assessed as suitable for such programs, to be able to consider this option despite any applicable presumptions against bail.

Finally, Madam Speaker, the bill provides for a stay of bail. The Bail Act already provides a process for reviewing bail decisions made by justices and magistrates. However, this new provision will mean that where the prosecution indicates its intention to seek a review in the Supreme Court of the court’s decision to grant bail, the grant of bail will be stayed pending the outcome of the review. The result is that the accused person will remain in custody while the stay remains in effect. The bill requires any such review to be dealt with as expediously as possible as the stay remains in place for a maximum period of three business days.

The review is by way of a rehearing of the bail application before the Supreme Court, and the court may vary the decision or make a substituted decision. As the review is by way of rehearing, there may be cases where the court will not be in a position to reach a decision within three days’ time frame. For example, it may be necessary for the court to obtain further reports relevant to the question of bail. To provide for those circumstances, the bill allows the Supreme Court to order extensions of the three day period where it considers it is appropriate to do so. I should make it clear that this is a matter for the court to determine. The bill does not provide for a party to the proceeding to make an application for an extension of the stay period.

This legislation is intended to protect the community from known recidivist offenders who commit serious crimes. In making amendments to such important legislation as the Bail Act, we are mindful of the balance between community safety and the rights of the individual. We believe that this bill addresses the issue of serious re-offending while, at the same time, recognising that important balance. The amendments will apply in relation to the granting of bail to accused persons for offences committed before the amending act commences.

That concludes my explanation of the bill. I table the explanatory statement which accompanies this bill and I commend the bill to honourable members.

Debate adjourned.

 

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