Alister Henskens portrait
Alister Henskens portrait

Bail Amendment Bill 2015


Mr ALISTER HENSKENS (Ku-ring-gai) [10.55 a.m.]: I also welcome the young leaders to the House, who are just departing the public gallery. Maybe it is fortunate that they are leaving before I speak. Before I make more substantive points on the Bail Amendment Bill 2015 and the cognate Terrorism (Police Powers) Amendment Bill 2015, I do very much hope that the shadow Attorney General was making a rhetorical flourish when he began his contribution by saying that the Government has changed the bail laws more often than it has changed its clothes. This is only the fourth amendment to the Bail Act in more than 2½ years. I very much hope that that is not a reflection on the member's personal hygiene, in that he changes his clothes only four times every 2½ years. I can certainly say that Government members do not have similar habits. I have heard it said that there is a stink on the other side of the House. I thought that had more to do with the way in which Opposition members conducted themselves rather than a matter of the kind that the shadow Attorney General has raised.

The Hatzistergos review—which was conducted by Judge Hatzistergos, a former Attorney General in this Parliament—was established to ensure that the safety of the community, victims and witnesses is at the forefront of decisions on bail. The review was asked to consider whether the Bail Act 2013 was framed appropriately to meet its objectives. They included, first, the protection of the community; secondly, the consistency of decision-making; and, thirdly, the need for laws to be easily understood and applied by the judicial officers who were dealing with them. The Government implemented the interim report of the Hatzistergos review and introduced a new "show cause" test for adults charged with certain serious offences. This means that an accused charged with certain serious offences must show cause why their release on bail is justified pending their criminal trial. These changes came into force on 28 January 2015.

The NSW Bureau of Crime Statistics and Research, often called BOCSAR, has reported that there is a very high bail refusal rate for show cause offences. In fact, police refused bail for 88 per cent of show cause offences. BOCSAR has also reported increased consistency between police and court bail decisions under the Bail Act 2013—a strong indicator that the new test and the new framework of the Act is certainly operating as it had been intended by the Government. The Government has now accepted all the recommendations in the final report of the Hatzistergos review. Overall, the review found that the new bail laws are operating well and also made a number of recommendations to further strengthen and streamline the Bail Act.

The Bail Amendment Bill 2015 will give bail authorities greater scope to revoke or refuse bail when the accused has breached their bail conditions. It will require past warnings for breach to be taken into account when a further breach is established. It will make amendments to correct anomalies and improve the operation of the law, including by allowing police sergeants to make bail decisions in hospital when the accused person cannot be taken to a police station due to incapacity or illness. The bail monitoring group will continue to monitor the operation of the Bail Act 2013 and the implementation of the final Hatzistergos review recommendations.

Schedule 1 is the schedule that particularly enacts the matters in response to the Hatzistergos review and recommendations of the NSW Sentencing Council. New section 16B tightens up offences or adds new offences to which the show cause test will be applied. In particular, it introduces a new section 16B (1) (k), which includes serious indictable offences committed by an accused person while the person is subject of a warrant authorising arrest of the person issued under this Act or part 7 of the Crimes (Administration of Sentences) Act 1919. That introduces a new show cause test where the accused has committed a serious indictable offence whilst effectively under the control of the criminal justice process—a most welcome addition to the Act.

The bill proposes also a new section 16B (3) to change the definition of a "serious personal violence" offence to include within the definition an offence under part 3 of the Crimes Act 1900 that is punishable by imprisonment for a term of 14 years or more, or an offence under the law of the Commonwealth, another State or Territory of a similar kind. It is very important to ensure that a serious personal violence offence is appropriately defined as indeed an offence of some magnitude.

Section 18 provides a criteria under the current Act by which the courts will assess what is called in the Act a "bail concern". The bill introduces a number of new matters to take into account under new section 18 (1) (f). They are matters that go to the history of compliance, or more importantly non-compliance, by the accused. New section 18 (1) (f) is a code under the Act and requires the judicial officer to take into account whether the accused person has a history of compliance or non-compliance with matters such as bail acknowledgements, bail conditions, apprehended violence orders, parole orders, and the like. These are all sensible additions to assist judicial officers in the proper exercise of the discretion to grant bail or not.

Schedule 2 to the bill introduces recommendations from the Martin Place siege review. The bill inserts new section 18 (1) (p), which will require as part of the bail concern assessment consideration of whether the accused person has any associations with a terrorist organisation, whether the accused person has made statements or carried out activities advocating support for terrorism acts or violent extremism, and whether the accused person has any associations or affiliation with any person or groups advocating support for terrorism acts or violent extremism. [Extension of time agreed to.]

The provisions to be added to section 18, particularly in the current climate and following the terrible recent events in Parramatta, are very appropriate to properly protect the community and are welcome additions that will enhance the legislation. New section 22A is a very important addition to the Act. It proposes to alter the test for the grant of bail in circumstances where an offence under section 310J of the Crimes Act—provisions dealing with membership of a terrorist organisation—or any other offence for which a custodial sentence may be imposed, if the bail authority is satisfied that the accused person has been charged with a Commonwealth terrorism offence, has previously been convicted of a Commonwealth terrorism offence or is the subject of a control order under part 5.3 of the Commonwealth Criminal Code.

In those circumstances it must be established that exceptional circumstances exist for bail to be granted. A test of exceptional circumstances is one that is very well known and familiar to the law. It is effectively a presumption against bail, but with a residual judicial discretion to grant bail if in all of the circumstances of the case they are so exceptional to warrant the grant of bail. That is a most appropriate balance of the individual and public interests involved in circumstances where there is a strong connection by the accused with terrorism offences, either currently or in the past. It would be difficult for anybody to argue that in the current climate that is not an appropriate test for the courts to be given in respect of terrorism-related offences or a terrorism-related background by the accused.

The shadow Attorney General said that some of the offences included within new section 22A are offences that nobody has ever been charged with. Let us all hope that that remains the case. Let us all hope that some of those terrorism offences are never the subject of a charge in our community. But if they are, it is entirely appropriate for this Government to ensure that if any accused facing those charges appears before a court on a bail application that exceptional circumstances will need to be established before bail is granted and they are allowed into the community. I commend the Government and the Attorney General for proposing such provisions within the Bail Act. They are entirely protective of the community, and I commend the bill to the House.