Review of the Bail Act (NT)

On 29 January 2013 the Society received your letter inviting us to make a submission on review of the Bail Act (NT). We welcome the opportunity to comment.

In developing this response the Society has conducted consultations with its Social Justice Committee which include representatives from Aboriginal and Torres Strait Islander Legal Services, Northern Territory Legal Aid Commission and the Criminal Lawyers Association of the Northern Territory.

In essence the Society opposes a neutral presumption and supports a uniform presumption in favour of bail. The Society supports the repeal of section 37B.

The Society acknowledges the NSW Bail Review Report by the NSW Law Reform Commission of April 2012[1] which was used as additional references in order to formulate this submission.

The Society acknowledges the submissions of North Australian Aboriginal Justice Agency (NAAJA) and Central Australian Aboriginal Legal Aid Service (CAALAS) on the Review of the Bail Act (NT). We have considered these submissions and support them.

(a) Omitting section 37B of the Bail Act that was introduced in March 2011 by the former Government. If such action was to be taken, should an offence of failing to appear in court to answer bail be prescribed in its place?

The Society supports the repeal of section 37B.

The introduction of section 37B in March 2011 created criminal sanctions for breach of bail. The stated purpose was to combat offending and making our streets safer. The Society is not aware of any evidence that section 37B has resulted in a reduction in criminal offences. Nor is the Society aware that this provision has resulted in an increase in community safety. Instead, the latest statistics of the Australian Bureau of Statistics show that the Northern Territory has recorded the largest proportional increases of 9% in imprisonment rates from the December quarter 2011. Nationally, the Northern Territory had the highest imprisonment rate: 843 prisoners per 100,000 adult population. ^[2]

Furthermore, s 37B has created more bureaucracy for all parties involved such as police, prosecutions, lawyers and the court. Consequently, the Society does not think the introduction of an offence of failing to appear in court to answer bail is warranted.

(b) Whether there should be any offences contained in the Bail Act for breaches of bail conditions, including by further offending. Whilst most other jurisdictions do contain offence provisions for failing to comply with a bail undertaking, I am interested to learn whether there is an ongoing community and stakeholder support for this position, or whether the existing grant of bail should simply be revoked upon a breach being established.

The existing grant of bail should not be revoked upon a breach being established. If a defendant fails to comply with a bail undertaking it is the Society?s position that judicial discretion should be exercised with respect to the appropriate outcome.

(c) Whether the Northern Territory ought to replace sections 7A and 8 of the Bail Act, with a modified provision which states that the presumption for all offences is neutral, with the onus of proof resting with the applicant to establish the matters in section 24, or that the provisions in section 9 apply.

The Society opposes a neutral presumption and supports a uniform presumption in favour of bail. This would concur with basic legal principles and concepts of justice, especially the value of personal liberty and the presumption of innocence.

The Society agrees that sections 7A and 8 of the Bail Act are complex and consideration ought be given to their repeal.

(d) Simply introduce a standard that all offences are presumption neutral for bail in the NT.

As stated above, the Society does not support a standard that all offences are presumption neutral for bail in the NT. We support a uniform presumption in favour of bail. This would concur with basic legal principles and concepts of justice, especially the value of personal liberty and the presumption of innocence.

(e) Whether the Bail Act should continue to apply to youth offenders, or whether the Youth Justice Act ought to be amended to specifically consider grants of bail to young offenders.

The Society supports amendment of the Bail Act (NT) to include reference to the principles and wording of the Youth Justice Act (NT).

1. (f) Any other comment.

Considerations for Aboriginal and Torres Strait Islander people:

The Society is particularly concerned that Indigenous people are substantially over-represented in the criminal justice system. Nationally, Indigenous people make up about 2% of the population, but 27% of the prison population.[4] In the Northern Territory, Aboriginal people are about 30% of the population but over 80% of the prison population and 90% of the young people locked up in juvenile detention.^[5]

Because of this overrepresentation, we consider that particular attention should be paid to the circumstances of Aboriginal people and Torres Strait Islanders when making decisions regarding bail. The Society endorses the recommendations made by the NSW Law Reform Commission on the NSW Bail Review, particularly regarding consideration of Aboriginal people?s needs and cultural practices, family structure, mobility and family links.[6]

Monitoring and Review:

The Society recommends the inclusion of a review provision in the Bail Act (NT). Particularly the Society would recommend such a review be conducted by an independent, suitably qualified research organisation. The NSW Law Reform Commission recommended after the period of three years from the date of the assent of the Act.[7]