HON GIZ WATSON (North Metropolitan) [3.26 pm]: The Bail Amendment Bill 2007 makes amendments to the Bail Act 1982, including requiring reasons to be recorded if a court grants bail in circumstances where the charges for a serious offence are set out in schedule 2 of the act; hence bail can be granted only in exceptional circumstances. This bill includes an amendment by adding to schedule 2 the offence of attempted murder; the removal of the requirement that adults charged with murder or wilful murder be automatically considered for bail, although I note that children will still be automatically considered for bail; allowing bail processes to use modern technology—for example, emails and audiovisual links; the option for some courts to dispense with bail for minor offences; clarification of which authority is responsible for instituting proceedings if bail is breached by a failure to attend a court; and a formal appeal process for bail decisions.
In most areas this bill facilitates processes and solves problems for the benefit of everybody involved. Indeed, the Greens (WA) support the majority of the provisions in this bill. However, there are some provisions in this bill that we do not support and they need to be amended before it is entirely acceptable to us. I refer particularly to the omissions of the recommendations made by the Law Reform Commission of Western Australia in its September 2006 report titled “Aboriginal Customary Laws—Final Report”. The report indicates that Aboriginal people are significantly overrepresented in the criminal justice system. For example, the reference to the Aboriginal justice agreement on the Department of the Attorney General’s website notes that while Aboriginal people represent only three per cent of the state’s population they make up some 40 per cent of prisoners and 73 per cent of juvenile detainees. Presumably the figure for Aboriginal people involved in the bail process is higher and, given this volume, the purpose of the “Aboriginal Customary Laws—Final Report” was to identify ways in which the government can deliver equal justice to Aboriginal people, although many of the improvements recommended by the commission extend benefits equally to non-Aboriginal people.
In January 2008 the Aboriginal Legal Service of Western Australia published submissions on the overrepresentation of Aboriginal juveniles in the Aboriginal justice system and made some specific recommendations about bail arrangements that are appropriate to consider in the context of this bill. Recommendations, mostly, extend equally to non-Aboriginal juveniles. It is particularly important that this bill is appropriate for juveniles, not the least because they understand that Rangeview Remand Centre is currently at full capacity, or it certainly was, as reported in The West Australian on 29 January 2007 .
Another issue arising out of bail arrangements is the need to ensure that proper care arrangements are in place for any children if the accused does not get bail. This issue was recently discussed on ABC Radio National’s The Law Report on 15 January 2008 . There is a 2006 discussion paper on the subject by an interstate researcher, Terry Hannon. It is a matter that I am also pursuing.
The second reading speech states that the bill implements the recommendations of the Doig report prepared by a panel of criminal lawyers set up in 1990 by the then Attorney General to review the Bail Act section by section. It also implements the recommendations of the Stamfords report prepared by consultants commissioned by the then Department of Justice and the Western Australia Police to review bail overall and to try to develop a best-practice model. Further, it claims to implement the input received from Chief Justice Wayne Martin, former Chief Justice David Malcolm and the Chief Judge of the District Court.
I will now raise some of the issues the Greens (WA) have with the bill. With regard to electronic communications, and, in particular, proposed section 3A, service occurs on receipt whether or not the message is subsequently opened and read. A person may have an email address that he or she does not access very often. The explanatory memorandum suggests that a person will provide an email address for notification only if that method of contact is always open and accessible. However, this depends on how the question is asked and by whom. If people are simply asked what their email address is, some people are likely to give it, particularly if the questioner is an authoritative figure, even if they do not access their email very often or if they are unsure what their email address is or what it is to be used for. This phenomenon of the questionee going along with what the questioner wants is called gratuitous concurrence and is a particular issue in communication with Aboriginal people. This can be seen in the submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner in the Queensland case of Giblet and Ors v State of Queensland and Uniting Church of Australia . Therefore, it needs to be clear that if an electronic address is given, it will be used for the service of notices and that the service will occur on receipt whether or not the message is opened and read. I note that during debate on this bill in the Legislative Assembly the member for Nedlands also raised concerns about electronic communications. She said that she thought it was a bit harsh for people who were drug affected or had a mental illness or whose lives were in disarray. I have an amendment to proposed section 3A, which I hope has been circulated. Again, I partly apologise for providing it late. I am trying to deal with some very complicated bills in a short time frame. I am sorry, members; I have had only a short time to look at the provision and I will speak to the amendment in more detail when we debate the relevant clause.
The second matter I want to raise relates to adults accused in murder cases, and that is in proposed section 7B in clause 9. I had a brief opportunity to discuss this matter with the minister’s advisers, but I might put the question so that I can have it clarified. This provision removes the requirement for an adult accused in a murder case to have bail automatically considered. Instead, an application for bail will need to be made. This is reasonable given that it is generally unlikely that the accused would get bail and that when a bail application is appropriate-for example, in the instance of a battered partner who might be arguing self-defence-an application can still be made. In a murder case, the accused is likely to be able to access legal advice about his or her ability to apply for bail. The proposal avoids unnecessary transport, which is hard on prisoners; we acknowledge that. One problem is that proposed section 7B(8) provides that the accused is not to be taken before a judge unless the judge so orders. At page 9 of the explanatory memorandum, we are told that it is anticipated that the accused will appear by video facility instead. However, the proposed section, as written, could perhaps be interpreted as not quite saying that, so that an unrepresented accused could be denied the right to appear unless the judge so orders. I have drafted an amendment to that clause. I will perhaps ask the minister to clarify this matter in her response. That would be useful, because I want to be clear that this amendment will not have any unintended consequences. I will leave that for the minister to respond.
I refer now to clauses 15, 16 and 46 on the matter of reconsideration of bail. If the accused or prosecution is unhappy with a bail decision, I understand that he can currently apply to the same court that made that decision in instances in which there is new evidence, if there has been a change of circumstances, or if his case was not presented properly. That is covered by schedule 1, part B, clause 4. The second option would be to seek a review of the decision by a court of the District Court for District Court matters only, by the Children’s Court for Children’s Court matters only, or the Supreme Court for other matters, to consider the matter afresh. That is covered in section 14. Following review by a judge, the next step would be to seek to appeal the judge’s decision to the Court of Appeal. This will no longer be a fresh hearing, but will be based on the material that was before the judge when he or she made the decision. The time limit in which an appeal can be made will be 21 days unless the Court of Appeal orders otherwise. That is covered in proposed sections 15A and 15B. My concern is that the time limit in which to lodge an appeal seems very short. I assume that a transcript would have to be obtained in order to draft the grounds for an appeal, since it is not a fresh hearing. If the person is impecunious, a grant of aid would need to be sought. How long does it generally take to obtain a transcript and for a Legal Aid application to be processed? My point is that, depending on how long those two processes take, a 21-day limit might be too short to be reasonable. Depending on the answer to that question, the time limit may need to be extended to a period more in keeping with the time that it is likely to take for a transcript and, if appropriate, a grant of Legal Aid to be obtained.
Hon Sue Ellery : Can I just check something?
Hon GIZ WATSON : Sure.
Hon Sue Ellery : I was off getting advice about the question relating to appearing and unrepresented persons. Are you still talking about that question or have you asked a subsequent question?
Hon GIZ WATSON : It is a subsequent question on the reconsideration of bail and the time allowed in which to make an appeal. It involves clauses 15, 16 and 46. The time limit in which to commence an appeal is 21 days, unless the Court of Appeal orders otherwise. It seems to me that that could be a very short period, particularly if one assumes that a transcript needs to be obtained in order to draft the grounds of appeal since it is not a fresh hearing. If a person is impecunious, he might need to seek a grant of aid from Legal Aid. Those two processes might take longer than 21 days. That is the point on which I am seeking a response.
I refer now to clause 18, which deals with the issue of the failure of an accused to appear in court. The effect of this clause is that a person no longer needs to telephone the court to advise that he cannot attend court at the required time. The explanatory memorandum stresses at page 20 the adverse affects that non-appearance has on court listings, and that advice by an accused of his inability to attend should not prevent his arrest on a bench warrant nor protect the accused from prosecution for breach of bail. One of the elements that must be proved by the prosecution is that non-attendance was without reasonable cause. It is also pointed out that it is not easy for the court to verify the authenticity of a caller. However, the last point can be addressed by a minor amendment requiring the accused to cause the court to be notified, rather than requiring the accused to do so himself or herself. Further, while fully acknowledging the difficulties associated with non-appearance, some situations are more important than a court hearing or are unavoidable, and the law should permit exceptions; for example, to attend funerals. Attendance at a loved one’s funeral is a very high priority for anyone, and for Aboriginal people in particular, it may, in addition, be a traditional law requirement. In its 2006 “Aboriginal Customary Laws — Final Report”, the Law Reform Commission of Western Australia specifically stressed at pages 169 and 170 the importance of attending funerals for Aboriginal people.
Of course, another reason for non-attendance is emergencies; for example, the sudden hospitalisation of a close family member. Again, this is a very high priority for anyone, and is particularly an issue for Aboriginal and Torres Strait Islander people. For example, the Department of Indigenous Affairs in its 2005 report, “Overcoming Indigenous Disadvantage in Western Australia”, states at page 36 that —
The life expectancy of Indigenous persons is typically around 15-20 years less than that of non-Indigenous persons. Western Australia has the second highest Indigenous mortality rates in Australia .
. . . An estimated 39% of the Indigenous population aged 15 years and over had a disability or long-term health condition in 2002.
Page 38 of that same report refers to the rates of hospital admission for infectious diseases —
The hospital separation rate in Western Australia for Indigenous children aged 0-3 years is four times higher than that for non-Indigenous children.
Therefore, I make the point that Indigenous people in these circumstances have a much higher likelihood, just on the statistics, of being unable to attend the court because of emergencies arising from health issues within their extended families.
The third matter is a breakdown of transport arrangements. This sometimes happens unavoidably, particularly when poverty or geography limits transport options available. Yet again, Aboriginal people are particularly vulnerable. For example, the 2001 Census found that Aboriginal and Torres Strait Islander households averaged 62 per cent of the income of other households and that they are also less likely than other households to own or have the use of a registered motor vehicle. The same Census shows that Aboriginal and Torres Strait Island people are more likely to live in remote areas than are non-Indigenous people. Obviously, alternative options such as public transport are not available in such places. It is no answer to say that these matters can be taken into account at prosecution, under section 51. By that time, the court, being unaware of the reasons for the non-appearance, may well have issued a bench warrant and the person may have been arrested and detained and possibly transported a long distance to be held until she or he can be taken before the court—assuming the person survives the transportation. In the sort of circumstances described, this is unnecessarily traumatic for the accused and his or her family and necessarily drives up the number of people, particularly Aboriginal and Torres Strait Islander people, in custody at the expense of Western Australian taxpayers. It exposes the prosecution to the risk of paying the costs of an unsuccessful case. Therefore, it is unreasonable for Parliament to require the police and courts to do this to people. Retaining a telephone notification process enables the court to take the information provided into account in deciding whether to issue a bench warrant, and for the police to also take it into account in deciding whether to lay charges for breach of bail. The court will still be able to issue a bench warrant and the police to lay charges, if the excuse given is considered unreasonable.
I have an amendment; is it on the supplementary notice paper?
Hon Sue Ellery : There are three amendments.
Hon GIZ WATSON : Is there an amendment to clause 18?
Hon Sue Ellery : It does not appear so.
Hon GIZ WATSON : Okay, we might have a little technical hitch, in which case I will provide that later. However, I will go into that amendment in more detail when we deal with clause 18 at the committee stage. That is the issue I wish to address and, in essence, I am saying that there would be a requirement to notify the person, rather than for that person to personally ring, which creates a difference.
The next question is about presumption against bail in murder cases, which is clause 41(4)(e). This clause amends schedule 1, part C to insert a new clause 3C providing that a person charged with murder or wilful murder is not to be granted bail unless there are exceptional reasons that the accused should not be kept in custody and, in addition, bail may be properly granted having regard to clauses 1 and 3.
Debate interrupted, pursuant to standing orders.
Resumed from an earlier stage of the sitting.
HON GIZ WATSON (North Metropolitan) [ 4.38 pm ]: I turn now to the presumption against bail in murder cases, which is dealt with in clause 41(4)(e). Clause 41(4)(e) amends part C of schedule 1 by inserting new clause 3C. It provides that a person charged with murder or wilful murder will not be granted bail unless there are exceptional reasons that the accused should not be kept in custody. In addition, bail may be properly granted having regard for clauses 1 and 3 of schedule 1.
The incidence of women and, less commonly, children, who are victims of domestic or family violence killing the perpetrator and subsequently being charged with wilful murder or murder is not as exceptional as one might think. Statistics provided by the Women’s Council for Domestic and Violence Services WA show that between 2000 and 2007, 25 men were killed by their female partners or child in circumstances in which it is suspected that the victim may have been a perpetrator of domestic or family violence. Such people, while themselves the perpetrators of society’s most serious crime, are also recognised in our society as victims. The women and children may have excellent antecedents and subsequently pose no risk to any other person. However, the operation of clause 41(4)(e) may be interpreted in a way that will deprive them of the opportunity to be granted bail because their situation, though uncommon, is not exceptional. The clause could therefore be amended very slightly so as to permit bail for these people if the court considered bail to be appropriate in all circumstances. I recommend—this is in the form of an amendment on the supplementary notice paper that I intend to move—that the word “exceptional” be replaced with the word “strong”. I will discuss that clause in more detail when we get to the committee stage.
The bill does not pick up any of the recommendations from the Law Reform Commission of Western Australia’s final report, entitled “Aboriginal Customary Laws”. Recommendations 29 to 31 and 33 to 34 propose amendments to the Bail Act. In addition, recommendation 32 is that the Minister for Corrective Services continue to develop, in partnership with Aboriginal communities, non-custodial bail facilities for Aboriginal children in remote and rural locations. Recommendation 35 is about ensuring that bail and surety forms and notices are easily understood by Aboriginal people and others. What is the progress in respect to recommendations 32 to 35 to date and what more is intended to be done in 2008 in this regard? I realise that this may be outside the scope of what the minister can respond to today. This bill has been in gestation for a long time and it may well be that the recommendations from the Law Reform Commission’s final report have not been considered in the light of this bill. Nevertheless, perhaps the minister might be able to provide an answer to this question at a later stage if it cannot be provided today.
Further issues have been raised concerning children as accused. I understand that a copy of a submission prepared by the Aboriginal Legal Service of Western Australia in January this year entitled “The Overrepresentation of Young Aboriginal People in the Western Australian Juvenile Justice System” was provided to the Commissioner for Children. I also note that like the “Aboriginal Customary Laws” final report, ALSWA’s recommendations are generally applicable to all children, not just Aboriginal children. I also note that the ALS states in its submission that the policy of the Children’s Court is to set early listings after a minimum of three working days. The effect is that if a child is detained in custody when she or he ought not to be, there is at least a three-day delay before this can be rectified on top of any time the child has spent in lockup and in transit before reaching Rangeview Remand Centre and contacting a lawyer. The stresses that this imposes on children and their families, particularly those from outside Perth , are obvious, so I raise this to emphasise the need to ensure that children are detained only when it is absolutely appropriate. A number of changes have been sought, including a requirement that bail is not to be refused solely on the grounds of the child’s lack of appropriate accommodation. The ALS seeks amendments to schedule 1, part C, clause 2 to reflect this and cites section 346(9) of the Children, Youth and Families Act 2005 in Victoria as a precedent. It states —
Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.
This will ensure that the focus always remains on the factors relevant to bail rather than simply assuming that lack of adequate accommodation automatically means that a child will fail to attend court, commit an offence or endanger people or property.
The next matter that I wish to raise relates to facilities for audio-video link-up and their proper maintenance. Proposed section 66B will permit the use of audio-video link-up facilities for bail. The next step is to ensure that these facilities are widely available. The Aboriginal Legal Service of Western Australia says that it regularly represents children from remote communities who are refused police bail and then transported hundreds of kilometres to appear in court at a regional centre, without the support of family or community. Also, although the Balgo and Kalumburu communities have video-link facilities, they are not currently operational. This is beyond the scope of amendment to the Bail Act, but I ask: which communities have video-link facilities and which communities are to get video-link facilities in 2008? I know that the minister will not be able to answer that question this afternoon, but I am just sneaking in the opportunity to add some questions on notice for the Attorney General. Also, what is the maintenance program for existing facilities? As we are discussing probably the most substantial amendment to the Bail Act for a considerable time, and there is not likely to be another consideration of major amendments to the Bail Act for a while, I believe it is not unreasonable that these issues be put on the record. We would argue that the frustration is that a number of issues that have a significant impact on bail and the operation of bail provision in Western Australia are not necessarily related absolutely to the act. Therefore, I guess the practicalities should not be forgotten.
In relation to bail justices, ALSWA proposes legislation similar to section 120 of the Victorian Magistrates’ Court Act 1989, which enables the Victorian Attorney-General to appoint community volunteers to be bail justices with the function of hearing bail and remand applications by people in police custody—a similar role to that of a justice of the peace. ALSWA has suggested that this would reduce the need to transport people from their communities for consideration of bail and make it easier to locate a responsible adult for a child, since the bail justices would know the community well and would tend to ensure that any relevant cultural issues were taken into account, again because the bail justices would be from the same community. Perhaps that is also an issue that might require a considered response from the Attorney General. In possible contrast, in its 2007 submission regarding minimum standards for Aboriginal and Torres Strait Islander courts, ALS raised concerns about the use of justices of the peace. Therefore, I would be interested to know whether the Attorney General intends to amend the Magistrates Court Act to allow for a new position of bail justice to address those issues that I have just mentioned.
The next issue is that the process for updating police records to reflect new bail conditions should be reviewed and improved. ALS says that it is common for courts to change bail conditions imposed by police but that this information does not seem to be filtered back to police. The ALS submission also states that ALS recently represented several clients unlawfully arrested and detained overnight by police for breach of bail conditions that no longer existed. If this is happening, it is unacceptable I therefore ask: what is the process to ensure that police are informed of court decisions about bail, and how quickly is this information provided to police?
My next point is that schedule 1, part C, clause 3A of the Bail Act should be amended to not apply to children. If a person on bail is charged with an offence that appears on the list, bail must be refused unless the circumstances are exceptional. In essence, it provides for mandatory custody after the charge has been proved. The list includes charges with which children are typically charged; for example, charges related to assault, prohibited drugs, stealing a motor vehicle, robbery, burglary and dangerous driving. The provision strongly conflicts with section 7(h) of the Young Offenders Act 1994, which provides that a young person should be detained in custody only as a last resort, and even then for as short a time as necessary. To resolve this conflict, the Bail Act provisions should not apply to young people, thereby leaving bail for young people to be considered in the usual way. Normal bail considerations include the likelihood of offending and endangering the safety, welfare or property of any person—which is in schedule 1, part C, clause 1—so that bail can still be refused when it is considered appropriate.
The next question is about not requiring detention in custody for non-imprisonable offences. Again, the Aboriginal Legal Service Western Australia says that it represents young people detained in custody on minor offences, even though any eventual conviction would not attract imprisonment and even though an adult in similar circumstances would not be detained. Although the submission refers to only two recent cases, I am aware that ALSWA has made similar complaints before. The instances to which ALSWA refers in its submissions are therefore not isolated. It should also be borne in mind that should a juvenile be from outside of the Perth region, detention in custody results in transportation to Rangeview Remand Centre in Perth .
The next matter I raise is about the children of accused. On 15 January 2008 , ABC Radio National’s The Law Report program was about the lack of arrangements for the care of children of an accused when an accused is arrested and detained in custody. The discussion was about children whose only carer had been removed by police, leaving the children to fend for themselves. In some circumstances the children did not even know the reason for their carer’s sudden disappearance. One of the interviewees was researcher Terry Hannon, who has written a discussion paper on the topic. This issue arises at various stages; for example, on arrest, bail and sentencing. A coordinated approach to the topic is probably best done by the development of interagency protocols involving the police, the courts, the prisons, the Department for Child Protection, schools and any other relevant organisation. I have personally referred the issue to the Commissioner for Children and Young People for her consideration of a process for a check into the care arrangements for children to ensure that they are not abandoned, neglected or harmed in the event that their caregiver is detained. I merely raise that point in this place because it is also relevant to the operation of the Bail Act. The Greens (WA) will support the bill, but I do have some amendments that I will be addressing at the committee stage.