This debate was held on 17/09/2014. You can read the original contribution here.

Mr DAVID SHOEBRIDGE [6.07 p.m.]: On behalf of The Greens I oppose the Bail Amendment Bill 2014. I find it remarkable that only a matter of months after a good piece of law reform, which received unanimous support in both Houses of Parliament, had been implemented—and, from all reports, it was providing much relief to the criminal justice system in respect of having a clear, transparent and principled way of determining bail—we have this dog’s breakfast of a bill come before us. It was drafted by a failed former Attorney General—

The Hon. Adam Searle: Point of order: It does the member no credit to engage in an attack on a former member of this House. It is churlish. It is unprofessional. The member should be asked to withdraw.

DEPUTY-PRESIDENT (The Hon. Natasha Maclaren-Jones): Order! Mr David Shoebridge should use caution in his reflections on former members of this House. There is no point of order at this stage, but I ask Mr David Shoebridge to use caution.

Mr DAVID SHOEBRIDGE: I note the ruling of the Deputy-President, but I in no way recant my characterisation of—

DEPUTY-PRESIDENT (The Hon. Natasha Maclaren-Jones): Order! Is Mr David Shoebridge reflecting on my ruling or does he want to continue with his speech?

Mr DAVID SHOEBRIDGE: I do not in any way challenge the ruling of the Deputy-President—in fact, I note it and appreciate it.

DEPUTY-PRESIDENT (The Hon. Natasha Maclaren-Jones): Then I suggest that Mr David Shoebridge continue with his speech.

Mr DAVID SHOEBRIDGE: I was responding to the point of order from the shadow Minister. He has gone out of his way to avoid dealing with the fact that a former Labor Attorney General—a hard-right, anti-liberty, pro-detention former Attorney General, who failed to get his broken and friendless bail bill through the Parliament in the dying days of the previous rotten Labor Government—

The Hon. Trevor Khan: Point of order: Mr David Shoebridge should speak to the bill rather than engage in personal attacks simply for the sake of doing so. We know that he has a problem with the former Attorney General, but he should speak to this bill and proceed, as has already been indicated, with a degree of civility—which he is failing to demonstrate at the present time.

DEPUTY-PRESIDENT (The Hon. Natasha Maclaren-Jones): Order! I uphold the point of order. The member should be speaking to the bill. The member is three minutes into his speech and the majority of it has not been to the bill.

Mr DAVID SHOEBRIDGE: The bill was brought to this House following a review by the former Labor Attorney General. It is undoubtedly relevant to the history of the bill and this appalling dog’s breakfast of an Act that the bill was brought to this House—

The Hon. Trevor Khan: Point of order: The member is clearly cavilling with your ruling and he should be brought to order.

Mr DAVID SHOEBRIDGE: No, I am not. You are just trying to take up my time. You are a grub. If you have got something to say you should say it on the record.

The Hon. Trevor Khan: Let me add that, as is typical of him, he cannot keep his mouth shut whilst a point of order is being taken. He should be brought to order now.

DEPUTY-PRESIDENT (The Hon. Natasha Maclaren-Jones): Order! I uphold the point of order. I remind the member that I have made a ruling. He should speak to the long title of the bill rather than to individuals.

Mr DAVID SHOEBRIDGE: Madam Deputy-President, you have not heard from me on the point of order.

DEPUTY-PRESIDENT (The Hon. Natasha Maclaren-Jones): Order! I have ruled on the point of order.

Mr DAVID SHOEBRIDGE: The objects of this bill are said to be to provide for a preamble to the principal Act; require bail for certain serious offences to be refused unless the accused person shows cause why his or her detention is not justified; convert the current two-step unacceptable risk assessment process that applies to all bail decisions into a one-step risk assessment; and require additional matters to be considered by a bail authority in applying the unacceptable risk test. That is what the bill says its objects are but the actual object is to cut a good piece of law before anybody has a rational basis on which to do so.

It is absolutely extraordinary that this bill has been introduced only five weeks after the enactment of a good piece of law reform that was years in the making. That law reform was decided on after detailed consideration by the Law Reform Commission and some of the finest legal minds not just in the State but the country. They came forward with a proposal to do away with presumptions and tidy up the bail laws. That proposal received support from every player in the criminal justice system apart from an angry minority in the police and a very angry Police Association that felt it was not being listened to. Every other player in the criminal justice system said that it was good, principled law reform and it passed through this Parliament with unanimity.

But when one shock jock, Ray Hadley, began criticising the bill the Leader of the Opposition, the Hon. John Robertson, jumped on the band wagon. He was happy to go on Ray Hadley’s radio show and get in the good books of the likes of Andrew Clennell and others at the Daily Telegraph. He fostered a divisive public debate about the bail laws with no evidence to go on other than grossly unprincipled politicking by Labor to tear down good law reform.

The matter was then handed to a former Attorney General from the far right of the Labor Party who came up with proposals to tear down a good bail law. I give full credit to former Attorney General Greg Smith, who stared down the shock jocks and the decades of unprincipled politicking on bail in this State. While I criticise him for many of his acts as Attorney General, his 2013 bail bill was principled and consistent law reform. Having torn down Attorney General Greg Smith because he showed principle in the face of ugly politicking by the shock jocks in this State, Ray Hadley then thought he would try to tear down the current Attorney General.

I do not think the current Attorney General’s heart is in this bill. I think he is affronted by what he sees in it. Nevertheless, the Cabinet has been forced into this position largely because Labor has jumped on the shock jock bandwagon of criticism and opened up the political space to tear down a good bail law. It is an indictment on Labor. Labor members come in here just like the shadow Attorney General did in the other place. The Hon. Paul Lynch stood up and read out principled critiques of this bail bill by the Council for Civil Liberties and the Australian Lawyers for Human Rights. He cried crocodile tears about there being no evidence to support the changes and said it will be the Government’s fault if it produces bad law. Nevertheless, he turned up and voted for it just like Labor members in this Chamber will do.

The Hon. Dr Peter Phelps: Point of order: Pursuant to President Harwin’s ruling in 2011 the use of the term “crocodile tears” is unparliamentary.

DEPUTY-PRESIDENT (The Hon. Natasha Maclaren-Jones): Order! I ask the Clerk to stop the clock. I will need to confirm that ruling.

The Hon. Dr Peter Phelps: I refer to page 60 of Selected Rulings of the President, which states that offence was taken to a suggestion that a member was crying crocodile tears and it was ruled that the comment be withdrawn.

Dr John Kaye: To the point of order—

DEPUTY-PRESIDENT (The Hon. Natasha Maclaren-Jones): Order! I have asked the Clerk to stop the clock. I am checking whether the Government Whip is correct.

Dr John Kaye: To be absolutely clear, the member used the expression “crocodile tears” with respect to a person who is not a member of this Chamber. Therefore, that ruling is not germane.

The Hon. Dr Peter Phelps: To the point of order: I do not believe it is appropriate to reflect on a member of the other House either.

Dr John Kaye: Further to the point of order—

DEPUTY-PRESIDENT (The Hon. Natasha Maclaren-Jones): Order! I am happy to rule on the point of order. The ruling made by the President did not specify whether it was a member of this House or the other House. Therefore, I uphold the point of order.

Mr DAVID SHOEBRIDGE: What exactly does this bill do? Schedule 1, item [1] inserts a new preamble into the Bail Act regarding the general intention of the Parliament in enacting the Act. Schedule 1, item [5] removes current section 16 with its one-path flow chart for all bail decisions and includes two charts with the show cause requirement and the unacceptable risk test. The first of those applies only to show cause offences and the second applies to all bail decisions under the Act.

Schedule 1, item [6] inserts the new show cause requirement that means that for bail considerations for certain serious offences the accused bears the onus of proving to the bail authority why his or her detention is not justified. Even once that is satisfied he or she is still subject to the unacceptable risk test. The offences that are classified as show cause offences are offences that are punishable by life imprisonment, serious indictable offences, including sexual assault of children, serious personal violence offences, firearms offences, drugs offences and certain other offences committed while under supervision orders. It also includes attempts to commit such offences.

Schedule 1, item [8] inserts new sections 17 to 20 in the Act that conflate what was a rational two-step test into a complicated appeal-ready notional one-step test where both the issue of bail concerns and conditions are to be considered together by the court. Schedule 1, item [9] specifies that the unacceptable risk test applies even to a bail decision where there is a right to release. Schedule 1, item [11] removes section 23 of the Act, which says that bail can be granted subject to conditions or unconditionally, and it almost effectively requires complex conditions.

Schedule 1, item [12] removes section 24 regarding general rules for bail conditions that were widely welcomed by police, courts and all players. Section 24 currently provides the general rules for bail conditions, which include that a bail condition can be imposed only for the purpose of mitigating an unacceptable risk and that bail conditions must be reasonable, proportionate to the offence for which bail is granted and appropriate to the unacceptable risk in relation to which they are imposed. These good provisions in the current law will be stripped out by the amendments contained in this bill. Schedule 1, items [13] and [15] likewise remove references to “unacceptable risk” and replace them with the new, rather confused Hatzistergos term of “bail concern”.

The new Bail Act commenced on 20 May 2014 after the better part of 12 months training of police, court staff and prosecutors. The review was announced five and a bit weeks later on 27 June 2014 and former Attorney General John Hatzistergos was tasked with the job. As we saw with former Federal Attorney-General McClelland, who the former Premier tasked to review police critical incidents, the current Premier looked into the bottom drawer to find a dependable right-wing Labor type to do the Government’s dirty work. Who did the Premier find in the bottom drawer? There, doing nothing much with his spare time, was former Labor Attorney General John Hatzistergos.

With the review having been announced on 27 June, the Hatzistergos report was presented on 4 August 2014, which was literally weeks later, with no public consultation and a limited group of stakeholders being consulted. Those stakeholders were largely from the police and the Government. Many stakeholders reported that they had not even been contacted as part of the review. Having received the report on 4 August, the Government managed to digest its contents in approximately a week and delivered the second reading of this bill on 13 August 2014. That is not law reform; it is a hatchet job, and that is what we have with this amending bill. The proposed changes take the Bail Act back 10 years to a complex, technical and unprincipled scheme where the presumption of innocence is largely lost. In fact, it has been stripped out of the purposes of this bill. Who on earth would think that in the twenty-first century we would have a bail law that strips out from the purposes of the bill the presumption of innocence?

Many members of this Government think they are conservatives. This is not conservative legislation. This is a radical departure from centuries of common law in which the presumption of innocence is meant to be the golden thread running through our criminal justice system. The golden thread has been snapped by this amending bill. There have been many critiques of this legislation. I will read from a critique by the Australian Lawyers for Human Rights. Unlike the Labor Opposition, I will not only read the critiques into the record as though I understand and care about what they say but because the critiques inform the way The Greens approach this bill. We will vote against this bill because we accept the legitimacy of these careful and principled critiques from some of the key legal players in the State. One of those is the Australian Lawyers for Human Rights, which states:
Australia is a signatory to the International Covenant on Civil and Political Rights, Article 9 of which confirms that the presumption of innocence underpins the concept of bail and recognises explicitly that “it should not be the general rule that persons awaiting trial shall be detained in custody”.

Whilst the criminal justice system must recognise situations where pre-trial detention is justified, these reforms are not reasonable because they do not allow the courts to assess the risks of granting bail based on the circumstances of the offence. They instead introduce arbitrary provisions dealing with all crimes in certain categories in the same way, irrespective of the facts of the case. This will potentially see innocent people spend long periods on remand awaiting trial and significantly increase the pressure on our already overburdened prison system.

The New South Wales Council for Civil Liberties states in relation to the relegation of the presumption of innocence from the purposes of the bill to an eighteenth century preamble provision:
The amendment proposes the transfer of the underlying principles that Parliament has regard to in enacting the Act from being specified considerations in the body of the legislation to the Preamble. These include ‘the common law presumption of innocence and the general right to be at liberty’.

The presumption of innocence (handed down through common law for centuries … will be watered down by moving it from a consideration in the granting of bail (as it should be) to a motherhood statement in the Act’s Preamble. The right to be presumed innocent should not be relegated in this way.
The New South Wales Council for Civil Liberties states in relation to the new show cause requirement and the presumption against bail that has been delivered with this amending bill:
The creation of so-called “show cause” offences constitutes a reintroduction of presumptions against bail for prescribed offences by the back door. The presumption scheme was soundly criticised in the revamp of the Bail Act and this grafts resumptions against bail, with all their faults, back onto the scheme of the 2013 Act. It introduces complications for no clearly discernible legitimate benefit. The effect will be to transfer more power to the police, by their selection of charges before the Office of the Director of Public Prosecutions has a chance to exercise independent judgement in charge selection.

Further – and more seriously – the onus of proof has been reversed in relation to those offences. Article 9 of the ICCPR states (in effect) that remand in custody is not to be the default position for people – any people – charged with offences, yet this creates such a position and imposes upon the accused [the obligation] to prove that it should not apply.

If one’s right to liberty is to be taken away, then the onus has always been on the party that seeks to remove it to establish lawful grounds for doing so. This will no longer be so in respect of these offences. The mischief done by these provisions is tacitly acknowledged by the exemption of juveniles from the scheme.

In an article that will be published in the forthcoming December issue of the International Journal of Crime, Justice and Social Democracy, Professors Brown and Quilter have this to say:
First, the reference to the presumption of innocence which had been in the purposes section of the Act has been relocated to the Preamble along with statements regarding: the need to ensure the safety of victims, individuals and the community (a); and the need to ensure the integrity of the justice system (b). Resort to a preamble is old fashioned and has generally been discontinued … The clear purpose is to reduce the importance of a bail authority having regard to the presumption of innocence – a regard that is not featured strongly in the cases analysed – with the assumption that a preamble is not usually construed as part of the Act. If this construction is upheld by the courts, a cornerstone of our criminal justice system – the presumption of innocence – is significantly downgraded.

They say this in relation to the confused way in which this amending bill deals with bail concerns:
… s 17 introduces a new concept of ‘bail concern’ not otherwise known to bail law in NSW or any other Australian jurisdiction – and certainly not in the equivalent Victorian/Queensland unacceptable risk models. Thus, the amending provisions require a bail authority to assess any ‘bail concerns’ before making a bail decision… A ‘bail concern’ is one that relates to the former factors used to assess ‘unacceptable risks’ … [such as] (failing to appear, commit a serious offence, and dangers safety of victims, individuals or the community or interfere with witnesses). In assessing the ‘bail concern’ the bail authority must take into account only the matters in s 18 – which comprise an expanded list of the matters previously used to assess unacceptable risk in s 17 (3). Importantly, these factors now also include any bail conditions that could reasonably be imposed to address any bail concerns … whereas previously such conditions could only be imposed to mitigate an ‘unacceptable risk’.

They conclude:
The clear intent is to allow bail conditions to be imposed at the lower threshold of a ‘bail concern’ – that is, even if no ‘unacceptable risk’ is identified. This is in direct conflict with the NSW LRC Report on Bail … which attempted to restrict the proliferation of pro-forma bail conditions and conduct requirements … by making it a two-step process so that conditions only came into play where the person would otherwise be detained, or as provided in the legislation, where there had been an unacceptable risk finding.

While this may be the intended effect, in introducing a concept not otherwise known to bail laws, it may also have unintended consequences.

I note it will almost certainly lead to an array of litigation, appeals and uncertainty in this area of the law. They conclude by stating:
While the Government has claimed that the changes are ‘common sense’, in its determination to look ‘tougher’ on crime and to give the electorate the impression that more people will be denied bail, they have rashly introduced complicated and unnecessary changes to a regime that had only just begun to become familiar to police, lawyers, magistrates and judges after a twelve-month familiarisation and training period.

This is bad law. It is bad law delivered by a Government that is responding not to a considered review of the way in which the current law operates but a Government that has rolled over and had its belly tickled by Ray Hadley. The Government has been forced into this situation by a deeply unprincipled Opposition that will do anything it can to look like it is relevant in the Daily Telegraph and get some shred of relevance in shock jock world. Bad law should never pass through this Parliament. The mock concern that we have from Labor about the civil liberties in this bill is shown to be mock because, while they say it on the record, the proof of the pudding is in the eating. We know for a fact that just like they did in the lower House, they will vote for this rotten bill in this House. The Greens oppose it. We are proud to oppose it and stand up for civil liberties. [Time expired.]