Major changes to the ACT’s bail considerations have been proposed in a government discussion paper. Photo: Michelle Kroll.
The potential first significant reform to the ACT’s Bail Act in two decades could see community protections strengthened, but some have questioned whether tinkering with legislative language will get the desired result.
Bail reform had originally been tasked to the Law Reform and Sentencing Advisory Council, which was disbanded in February of this year, with a discussion paper now released outlining where the ACT Government feels reform can be made.
Attorney-General Tara Cheyne felt this discussion paper would provide much swifter legislative change after the former LRSAC chair told her it was going to take beyond an extended 30 June deadline to look into the issue.
“With the community desire to see change … and the [Legislative Assembly] committee inquiry into this issue complete, the government already had a strong basis to put out what proposed reform could look like,” she said.
“This might look to some like another review, but it’s not … this is the government proposing a pathway forward.”
Currently bail decision-makers must consider the likelihood of an accused person appearing in court in relation to an offence; their likelihood of committing an offence, harassing or endangering someone’s safety, and potential obstruction of justice while on bail; and the “interests of the person” (such as a need for physical protection or the length of time a person could face in prison if remanded).
The court or authorised officer may also regard any other relevant matter, including the nature and seriousness of an offence; a person’s character and background; any previous grants of bail; the strength of evidence; and how a refusal of bail could impact on a person’s family or dependents.
The difference between ‘may’ and ‘must’ is a big one when it comes to interpretations of the law.
This is highlighted by the discussion paper, which noted that while courts could be proactive in finding out information about an accused, pressures such as “time or urgency may limit relevant considerations being sought and/or being given appropriate regard”.
“The government is of the view that there may be value in clearly setting out the key categories or lenses through which a decision-maker should be considering the relevant criteria,” it noted.
These categories would be the interests of the victim, the interests of the accused, and the interests of community safety and justice integrity.
The paper noted there shouldn’t be a hierarchy when considering these interests.
“It’s about thinking about circumstances in a holistic way,” Ms Cheyne said.
“It’s not that community safety isn’t a key consideration … [but one set of interests] is not supposed to sit above another.”
Other potential reforms include creating standalone provisions that require decision-makers to consider any issues that arise due to a person’s Aboriginal or Torres Strait Islander status (including cultural background, ties to family and place, and cultural obligations); considering if an accused person is a primary carer or pregnant; whether police submissions should always be a relevant consideration; and whether prevalence of an offence in the community should be included alongside considerations of the nature and seriousness of an offence.
Ms Cheyne said reform was also about making the sometimes “labyrinthine” legislation easier for decision-makers and the public to interpret.
The Australian Federal Police Association (AFPA) “strongly supports” the proposed reforms.
The union particularly welcomed proposals to mandate consideration of police submissions.
“By incorporating police insights and strengthening bail conditions, these changes will support our members in their critical role of upholding the law in the ACT,” AFPA president Alex Caruana said.
Reform advocate Tom McLuckie felt there were still gaps that needed to be considered in order to keep the community safe.
He questioned why only a person’s prior bail history may be taken into consideration when there were other instances of breaches he felt should be considered.
“There are people committing offences who aren’t just on bail, they’re on intensive corrective orders, good behaviour orders, DATOs [drug and alcohol treatment orders] … others have ‘no conviction’ recorded,” Mr McLuckie said.
He also expressed his scepticism that the reform would work at all if there weren’t a way to measure the application of the law by magistrates and justices, as he felt there was too much discrepancy between bail decisions.
“How can the public [otherwise] know how they are applying the rules of the Bail Act?” Mr McLuckie asked.
“It’s possible there’s been some misinterpretation of the Act, but they’re also [potentially] using their own discretion too much.”
A live question is around the length of time an accused person should be held in custody ahead of a bail hearing, especially if strengthened ‘musts’ are enacted.
“What is the judicial – and community – tolerance for a hearing to be adjourned for that evidence to be provided?” the discussion paper asked.
Mr McLuckie said from a community-safety perspective, people should be held longer while more information was gathered to create more informed bail decisions.
“If the nature of the crime is serious, or the [accused] person has a history of reoffending, then they should be held for longer.”
Community and stakeholder feedback on the Bail Act discussion paper is open until 13 June.
