Tara Cheyne acknowledges the community is passionate about bail reform and encourages members to have their say. Photo: Michelle Kroll.
Every day, Canberra’s magistrates and justices decide who can walk free from their courtrooms.
They hear from lawyers about their accused’s caring responsibilities, plans to go to rehab and reasons for being there. They’re weighted against risks to alleged victims, concerns for community safety and whether the accused can be trusted to return for the next court date.
ACT Attorney-General Tara Cheyne said an ongoing review of bail law was putting that balancing act under the microscope.
Reforming bail law was originally tasked to the Law Reform and Sentencing Advisory Council, but that was disbanded earlier this year. The ACT Government then released a discussion paper, outlining where it believed reform could be made.
“There’s been lots of commentary out there and it’s usually in relation to a particular matter,” Ms Cheyne told Region.
“I’m hoping our discussion paper focusses people’s attention on bail as a concept.”
She said the review was examining how bail functioned as part of the ACT’s legal system, as well as its impacts on those involved (from the accused to their alleged victims).
In the ACT, some charges have a presumption for or against bail attached to them based on the highest possible level of prosecution.
“We’re asking the community is that framework helping the decision maker undertake that risk assessment with all of the relevant factors taken into account,” she said.
“Are there some things that could be strengthened or borne out a little bit differently in that framework that is the legislation?”
She said the review’s goal was bail legislation that balanced “community safety, interests of the defendant and interests of the victim” – and why the discussion paper was open for feedback.
“For any changes we do make, we want to ensure they’re evidence-based and the community understands why we’re making them and what they’re intended to achieve,” Ms Cheyne said.
If bail application is refused, alleged offenders are taken to the Alexander Maconochie Centre. Photo: Michelle Kroll.
The review proposes to create a provision in which bail decision makers must consider Aboriginal and Torres Strait Islander issues such as cultural obligations or ties to family and place.
Ms Cheyne said this hoped to address the high rates of incarceration of First Nations Canberrans.
In 2024, Australian Bureau of Statistics (ABS) data revealed the number of Indigenous people in ACT prisons was up 28 per cent since 2021.
“They often have really key connections to culture, to Country, to kin, and to break that (whether it’s for a short or an extended period of time), can have some pretty terrible outcomes for them in the short and the longer term,” she said.
“It might be more helpful for them to stay in community and be supported in that way.”
She said carving out a requirement to consider Aboriginality during bail hearings was currently the only “definitive proposal” on the table but the discussion paper could raise other factors.
All Canberrans are invited to comment on the paper.
“I appreciate people want reform to happen as quickly as possible, but I think I’ve at least got the balance right in putting out a paper that is provocative. It is intended to get people’s interest and to ask questions, [and] gain a reaction.”
Ms Cheyne said it was important the review – and flow-on changes – weren’t rushed through and the success of any legislative changes would be judged against the public “having greater trust and greater confidence in the justice system”.
“It can be quite easy to focus on a particular matter and to feel quite emotional about it. But you might not have all the facts about it in front of you.”
Community and stakeholder feedback on the Bail Act discussion paper is open until 13 June.
