Northern Territory Second Reading Speeches Northern Territory Second Reading Speeches[Index] [Search] [Bill] [Help]
| Mr STIRLING (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time. The purpose of the bill is to amend the Bail Act in order to reverse the current presumption in favour of bail in relation to an accused person charged with a serious sexual offence. It requires the court to consider additional criteria such as the protection of an alleged victim of a sexual offence in deciding whether to grant bail, and give effect to Recommendations 35 of the Board of Inquiry into the protection of Aboriginal children from sexual abuse. Reducing rates of violent crime is one of the government’s key law reform priorities and a review of bail as it applies to alleged sexual offenders is a key element of this agenda. In developing this bill, extensive consultation has taken place with numerous individuals and organisations within the legal profession as well as victims groups and domestic and family violence organisations. I acknowledge that the policy decisions reflected in the bill are contentious and do not have the support of everyone within the legal profession. It is not a step that I take lightly, but the government has made the deliberate decision to put the protection of women and children first. After having the courage to report a serious sexual offence, women and children must have the right to feel safe from the alleged attacker. The bill helps to achieve this goal which is why it has been welcomed by many stakeholders particularly those who have experienced working with victims of these crimes. Madam Speaker, I turn now to the detail of the bill. Clause 4 inserts a number of new definitions into the Bail Act including: child, conduct agreement, Commonwealth sexual offence, and Territory sexual offence. The definition of Commonwealth sexual offence is an indictable offence against the law of the Commonwealth containing one of more elements set out in the definition. These elements are references to serious Commonwealth sexual offences contained in the Crimes Act 1914, the Criminal Code Act 1995 and the Customs Act 1901. By inserting this new definition, the bill makes it explicit that the Bail Act as amended will also apply to serious sexual offences listed in Commonwealth legislation. A Territory sexual offence is an indictable offence containing one or more of the elements set out in the definition. For consistency, the definition of Territory sexual offences is similar to that contained in the Evidence of the Children Amendment Bill 2007 passed by the House on Tuesday. Clause 5 then inserts a definition of serious sexual offence. A serious sexual offence is defined as a Commonwealth sexual offence or Territory sexual offence where which a maximum penalty of imprisonment for seven or more years is prescribed. It also includes an offence for which a lesser maximum penalty is prescribed for procuring a child under the age of 16 years to engage in sexual intercourse or an indecent act; the indecent assault of the child under 16 years where the offenders is an adult; or an act of gross indecency in public where the act is committed by an adult in the presence of a child. Offences that will fall within the definition of ‘serious sexual offence’ include sexual intercourse without consent as a Territory offence, and in the Commonwealth context, rape as a war crime; various offences relating to indecent dealing with children or maintaining a sexual relationship with a child; offences relating to child sex tourism, sexual slavery and forced prostitution; and the possession, production and distribution of child pornography or child abuse material, and the use of such materials to groom or procure children for the purpose of committing sexual offences. Madam Speaker, I move to clause 6, which is at the heart of this government’s reforms. Through this clause, section 7A of the Bail Act is amended so that a presumption against the grant of bail exists in relation to serious sexual offences. Under this section, a presumption against bail currently exists in relation to a number of offences including murder, treason and serious drug offences. A presumption against bail also extends to some sexual offences that already come within the definition of a serious violence offence, but only in certain limited circumstances where the alleged offender is an adult accused of committing the relevant offence while on bail for another serious offence and has previously been found guilty of a further serious offence within a specified period, being 10 years in the case of a serious violence offence, or two years in the case of another offence with a maximum penalty of five or more years imprisonment. Whilst this provision will be applicable in some cases of alleged sexual offending, it will only apply to an accused with previous relatively high level contact with the criminal justice system. In the government’s view, the current provision does not adequately address the issues and risks that exist in relation to sexual offending. In general terms, the community rightly regards sexual offences, particularly those relating to children as more abhorrent than other types of offending. Research indicates that some sexual offenders are more likely than other types of offenders to serially re-offend, therefore there are strong grounds to impose higher restrictions on the ability of a person accused of a sexual offence to access bail. Research further indicates that reversing the presumption on the basis of a recorded history of offending will have a limited effect. In light of these points, the government is determined that the presumption in favour of bail should be reversed in all matters involving a charge of a serious sexual offence. Clause 7 amends section 24 of the Bail Act which deals with the criteria to be taken into account by the court or authorised member when determining whether to grant bail. It sets out the only matters that are allowed to be considered when deciding whether bail should be granted. Section 24 currently allows the court or authorised member to consider the probability of the person appearing before court following a release on bail, the interests of the person, the protection and welfare of the community, and specific factors relating to the protection of victims of domestic violence. It is proposed to amend section 24: first by requiring the court to consider the risk of the accused person committing an offence, breaching the peace, breaching their bail conditions or interfering with evidence, witnesses or jurors; second, by specifically requiring the court to consider the risk to the safety or welfare of the alleged victim, his or her close relatives and any other person who could be at risk given the circumstances of the case. Where the victim is a child the court is also required to consider the risk proposed to any caregiver where that person is not the child’s close relative; and, third, by inserting a new subsection providing that the risks that the court must have regard to include the potential for violence and intimidation, property damage and harassment. New subsection 4 provides where the alleged victim is a child or the offences are serious sexual or violence offences, then particular care must be taken in considering the alleged victim’s safety and welfare. New subsection 6 also provides that it is the prosecution’s responsibility to inform the court or authorised member of any concerns expressed by an alleged victim for their safety or welfare in connection with the release of the accused on bail. Finally, section 24 is amended to incorporate recommendation 35 of the Little Children are Sacred report. The report found that communities were concerned about the potential effect that the release of an alleged perpetrator back into the community may have on the child victim. To address these concerns, the board recommended that specific provisions be inserted into the Bail Act to require the court or authorised member to take into account, among other things, the age of the child and the accused person, the proposed living arrangements for the child and the accused person, the desirability of preserving the child’s living arrangements and family and community relationships. This recommendation has been adopted and the considerations I listed are now spelled out in section 24(5). Madam Speaker, at this point I will make a few comments on the Commonwealth government’s approach to this issue. On 17 August 2007, the Commonwealth parliament passed the Northern Territory National Emergency Response Act 2007. The Commonwealth act, at section 90, directs the Northern Territory Bail Authority to (a) consider the potential impact on the alleged victim, witness or potential witness of the alleged offender’s release on bail; and (b) give specific consideration to these issues when the victim is from a remote community. As I mentioned previously, the Northern Territory bill contains complementary provisions directing the Bail Authority to have regard to risk to the alleged victim, relatives and carers, and adopting the report recommendation 35 regarding the victim’s age, the victim and the alleged offender’s current and proposed living arrangements, the need for the alleged victim as far as possible to maintain his or her living arrangements and community relationships. While the Commonwealth amendments are directed at victims from remote communities, the Northern Territory position is that increased protection for victims, regardless of where they live, is the better outcome. The provision of the Commonwealth act overlaps with the Northern Territory bill but the two are not inconsistent. For this reason, it will be possible for a Bail Authority to address the considerations set out in both the Commonwealth act and this bill when determining a grant of bail. As a result, no changes have been made to the Northern Territory bill in light of the Commonwealth’s intervention. Returning to the provisions of the bill, to best give effect to the changes I have outlined, the bill proposes that current sections 27A and 28 be repealed and replaced. Current section 27A relates to conditions of non-association and place restriction which might be imposed on an alleged offender. Under the changes, the capacity of the court or authorised member to impose a condition of non-association and place restriction under section 27A is replaced by a system of conduct agreements set out in new section 27A. New section 27A sets out the constraints that may be included in a conduct agreement, such as prohibitions on an accused person; associating or communicating with specified persons; being within or moving outside a specified locality, and consuming alcohol or other drugs. The bill provides a contravention of the conduct agreement is to be regarded as a breach of a bail condition. The court may, however, excuse a breach of this nature if satisfied that the accused had a reasonable excuse for the contravention. New section 28 provides that, in granting bail, the court or authorised member must impose the bail conditions necessary to minimise risk to the safety or welfare of others, or to the proper administration of justice. Section 28 further provides that these conditions must be proportionate to the risks. Madam Speaker, these reforms are directed at increasing the protection available to all alleged victims of serious sexual offences, and in particular child victims. This is an objective the government takes very seriously. I have therefore directed the Department of Justice to closely monitor the operations of these provisions and ensure they are achieving their objective. I have also asked the department to submit the provisions to formal review after two years of operation. I commend the bill to honourable members and I will table a copy of the explanatory statement. Debate adjourned. |