This speech was delivered on 22 May 2013 in the NSW Upper House. You can read the full debate online here.


In Committee

Mr DAVID SHOEBRIDGE [3.36 p.m.]: I move The Greens amendment No. 3 on sheet 2013-046C:

        No. 3 Page 18. Insert after line 29:

33 Onus of proof

        In any bail proceedings, the onus of establishing that there is an unacceptable risk lies on the prosecution.

This amendment seeks to clarify what appears to The Greens to be the intent of the bill in any event. The bill is silent on who has the onus of establishing either the presence or absence of an unacceptable risk. Bail proceedings are invariably adversarial, particularly if they are being determined before a court where one party is seeking to establish something and the other party is seeking to refute it or establish a contrary position.

At proposed section 32 the bill provides some guidance to bail authorities on how they are to go about their task by including a clear statement that any matter that must be decided by a bail authority exercising a function in relation to bail is to be decided on the balance of probabilities. That applies except for proceedings for an offence in relation to bail. The legislation makes it clear that the determination of bail is decided on the balance of probabilities, but if we truly want to ensure that the people making the bail decisions know the starting point for the inquiry we must make it clear that the onus for establishing unacceptable risk lies with the prosecution. In the absence of establishing an unacceptable risk, the person can be released on bail either with or without conditions.The starting point needs to be who has the onus. As I said, it is reasonably clear from reading the bill that the onus lies with the prosecution. That is the party that will be charged with protecting the public interest if it thinks it is necessary by establishing that there is an unacceptable risk for an accused person to be released or released without condition. It is for reasons of clarification and certainty that we move to insert a new section 33 that says that in any bail proceedings the onus of establishing unacceptable risk lies with the prosecution. We hope that the Government will support this clarification of its bill.

Mr DAVID SHOEBRIDGE [3.42 p.m.]: I thank the Minister for clarifying the Government’s position. As I stated, it was The Greens reading of the bill that that was the situation. If the prosecution asserts, he who asserts must prove. In relation to unacceptable risk, if the prosecution asserts its existence, the prosecution must prove it. But of course, it is always good to have such matters stated in black and white. While I accept that the Minister has stated the Government’s interpretation, I emphasise that it would appear that it is also the comprehension of all participants in this debate of how the bill will work. However, it cannot hurt to make very clear to magistrates and other bail authorities where the onus lies. The Greens press the amendment in that regard.Question—That The Greens amendment No. 3 [C2013-046C] be agreed to—put and resolved in the negative.The Greens amendment No. 3 [C2013-046C] negatived.

Part 3 [Clauses 15 to 32] agreed to.

Parts 4 to 6 [Clauses 33 to 70] agreed to.

Mr DAVID SHOEBRIDGE [3.43 p.m.]: I move The Greens amendment No. 4 on sheet C2013-046C:

        No. 4 Page 40, proposed section 74 (3) (d), lines 11–12. Omit all words on those lines. Insert instead:
          (d) the previous application was made on a first appearance for the offence, or
        (e) the person is a child.

This amendment is intended to amend clause 74 (3) of the bill to implement the very clear recommendation from the Law Reform Commission, which is to repeal section 22A of the current Bail Act. Section 22A of the current Bail Act 1978 places unnecessary and inappropriate restrictions on the number of bail applications that both adults and juveniles may make over the period during which they are being held on remand. The Greens amendment No. 4 seeks to omit clause 74 (3) (d), which states that one of the grounds for a further release application is that “the person is a child and the previous application was made on a first appearance for the offence”, and replace it with “the previous application was made on a first appearance for the offence”, which would have the effect of stating that any accused, either a juvenile or an adult, would be entitled to make a second bail application if their first and unsuccessful bail application was made on their first appearance. That is consistent with the recommendation by the Law Reform Commission, which states:

        We recommend that the prohibition against further applications should not apply to a person who is under 18 at the time of the offence and who is under 21 at the time of the application. In the case of adults, two applications to the court should be allowed before the prohibition applies.

That aspect of The Greens amendment No. 4 would allow adults to take two bites of the cherry, effectively. Their first application can be made on their first appearance. The fact of the matter is that on the first appearance, often scant instructions are given to legal counsel and often the facts are not fully known to either the accused or, most especially, to their legal representatives. As a result, the first application for bail is often made on the basis of imperfect information and is often hurried. At times, it can be not the best prepared application that people would hope for. The truth of the matter is that bail applications take two or three minutes as they are churned through a Local Court. The thought that that first and only bail application will be the only chance that a citizen has of being released on bail while the prosecution against them grinds on potentially for months is grossly unjust in the view of The Greens.

Current section 22A of the Bail Act 1978 has led to an enormous spike in the number of people being held on remand in New South Wales jails for the very obvious reason that initial bail applications, which have been made on limited instructions with limited preparation time and often with an imperfect understanding of the facts, can fail regularly. If a bail application fails in those circumstances, consistent with the Law Reform Commission’s recommendation, The Greens firmly believe that all adults should be given that second chance when they have all the facts to hand and greater time for preparation. The second aspect of The Greens amendment No. 4 is to insert a new clause 74 (3) (e) to provide another and alternative ground for release, which is that the person is a child. That is also consistent with the view adopted by the Law Reform Commission—that juveniles should have no restrictions on the number of bail applications that they can make.

There are very good reasons for not limiting the number of bail applications by a juvenile. The first and most obvious reason is that the number of young people in our jails in New South Wales has continually increased since the implementation of section 22A of the Bail Act 1978 and the limits on the number of bail applications they may make have taken effect. As the Law Reform Commission found, on average, the number of juveniles in jail increased between 2000 and 2010 from 225 a day to 400 a day. New South Wales jails its children at four times the rate at which children are jailed in Victoria. A large part of the reason is that bail applications are so difficult for juveniles in New South Wales and there are such restrictions on making bail applications in New South Wales. The second reason The Greens are moving to have unlimited bail applications for children is the simple fact that they are children. The refusal of bail inevitably means that a child who is living within a family unit will be taken from that family unit, taken from school and suffer enormous disjuncture to their lives.

The final outcome from criminal proceedings against children when the matters eventually come to trial is that the vast majority of children who have been in jail on remand are either found not guilty or are given a non-custodial sentence. So the only time those children have spent in jail is while they are on remand because they have had bail refused. The spike in juveniles being held in jail, and the fact that the majority of juveniles who are refused bail and held on remand eventually, when they come to trial, get a non-custodial sentence or are found not guilty, and the fact—and this really should be the final nail in the coffin for section 22A as it applies to juveniles—that more than half of the children who are in jail tonight are Aboriginal children from some of our most vulnerable communities, are compelling reasons, The Greens put forward, to support this amendment and ensure there are no restrictions on the number of bail applications that children can make.

Mr DAVID SHOEBRIDGE [3.55 p.m.]: It is clear that there is a policy difference between the Government, the Opposition and The Greens on this issue of children in particular being able to make multiple bail applications. The Minister did not in his response address the simple fact that in the order of 80 per cent of juveniles denied bail and held on remand are, when they eventually get to trial, either found not guilty or given a non-custodial sentence. The only time they have spent in jail is on remand because they have had bail refused. That fact in itself should make it clear that justice dictates that children who are refused bail once should have the right to make further bail applications, without the kind of restrictions in proposed section 74 (3).

The Minister spoke at some length about the distress of witnesses and victims in the course of bail applications. The truth of the matter is that witnesses and victims are almost never called as witnesses in the course of bail determinations. Often, these are extremely summary proceedings that can take only two or three minutes and are determined, on the balance of probabilities, on the papers before the court. So it is a false argument that the Minister raised in that regard in his attempt to defend an unnecessarily harsh and unjust provision against juveniles in proposed section 74. I accept there has been a very small lessening of the hurdle that juveniles have under section 22A by allowing them a second application when their application failed on first appearance. But the only jail time served by the great majority of juveniles is when they fail to get bail and are held on remand, even though they are ultimately found not guilty or released from custody. Questions about court and police resources and justice surely fall on the side of giving juveniles open grounds on which to make a second or further bail application.

Mr David Shoebridge: Juveniles.
Mr David Shoebridge: For children.
Mr DAVID SHOEBRIDGE [4.06 p.m.]: The Minister says that he will not support The Greens amendment because he wants to protect the victims of crime and ensure that they are properly cared for by the Government. The truth of the matter is that the only reason the Government opposes the amendment is to protect itself from attack from the likes of the Daily Telegraph and right-wing shock jocks, who regularly inflame the community based on a lack of genuine comprehension of falling crime figures in New South Wales, particularly relating to juveniles. As the Hon. Jan Barham made clear, there has never been any evidence of systemic abuse by juveniles making multiple bail applications—save perhaps on one or two occasions.

In the same month the Government introduced the Victims Rights and Support Bill 2013 to slash compensation payments to victims of crime—denying most victims of child sexual abuse any compensation for the gross insults and abuse they have suffered, gutting the rights of domestic violence victims to receive anything like decent compensation and trashing some 24,000 applications that were sitting in the queue and retrospectively denying the bulk of them any fair compensation under legislation—the Government has the temerity to say that it supports victims of crime. That is the greatest hypocrisy and insult that I have heard in this Chamber.