Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I thank the minister and Senator Parry for their comments. I listened very carefully because everything that you have said is entirely reasonable and completely neglects the point I was raising: why not require the police officer to apply for the warrant post facto? Why not get that additional piece of paperwork and that additional safeguard on the table? If indeed these provisions are so reasonable and so well safeguarded, why is this the one category of search whereby a warrant would not be required? I do not expect that I will necessarily be getting any new information, so I simply move items (30) and (31).

Question negatived.

I will speak to amendments (32), (33) and (34) to the National Security Legislation Amendment Bill 2010 on sheet 6181, acknowledging that amendment (33) will probably need to be moved separately. These amendments deal with bail and a presumption against bail for terrorism offences. Again, these items had quite an airing during the committee hearings and the various materials that were forwarded in the process of evaluating the exposure draft of the bill. We support the amendment to section 15AA of the Crimes Act which provides a right of appeal to both prosecution and defence to a grant or refusal of bail. That seemed to us to be common sense. However, we remain opposed to the presumption against bail for terrorism offences and believe that bail for terrorism offences should be dealt with in the same way as other criminal offences rather than requiring that bail only be granted in exceptional circumstances.

We are concerned that the presumption against bail is a threat to the presumption of innocence that Australia is obliged to respect under article 14(2) of the ICCPR and that the provision may also be a disproportionate interference in the right to liberty contained in article 9 of the ICCPR. Concern with the presumption against bail in section 15AA has also been expressed by the UN Human Rights Committee in their 2009 concluding observations on Australia, where they identified this clause as potentially being in breach of Australia’s obligations under the ICCPR. By removing the presumption against bail for terrorism offences, the offences would be subject to the usual bail considerations.

Usual considerations include the seriousness of the charge and the likelihood of the accused committing further offences if granted bail. We have been considering tonight a range of hypothetical offences. The ones that have been put to us are generally pretty serious and you would have to presume that, if the magistrate is doing their job, bail would not be granted if the person is likely to recommit some kind of offence or if the offences are as serious as proposed. The considerations will obviously ensure that where there is a risk that upon release an individual may commit or assist in committing a terrorist attack they would not be granted bail. There is therefore no need to provide an unduly high hurdle for an accused to overcome, as the bill does with bail only to be granted in exceptional circumstances—a phrase that is actually not defined in the bill.

I am of the opinion that the presumption against bail, if this is to remain, should be accompanied by safeguards in addition to the right to appeal the granting or refusal of bail, as this bill proposes to implement. The cases of R v Kent and R v Ezzit Raad mentioned by the Law Council of Australia in their submission to the Senate inquiry highlight the difficulty that the judiciary has had in determining whether delay in the investigation period or delay between the arrest and trial constitutes exceptional circumstances and, therefore, whether bail should be granted. In Ezzit Raad it was held that a considerable delay between arrest and trial, even when the accused was being held in particularly harsh conditions of detention, did not constitute exceptional circumstances.

We are also concerned with the proposed implementation of sections 15AA(3C) and 15AA(3D) which provide that, where bail is approved for a terrorism offence and the prosecution decides to appeal that bail, it may be stayed until a decision is made on appeal, prosecution notifies the court that it does not intend to proceed with the appeal or 72 hours have passed since the stay came into effect. Again, we do not believe that the government is approaching the denial of an individual’s liberty with an appropriate degree of seriousness, especially considering to be granted bail for a terrorism offence is no easy feat with, as mentioned, bail only granted for terrorism offences in exceptional circumstances. Therefore, we believe that proposed sections 15AA(3C) and 15AA(3D) be repealed. I will wait for the minister to make some remarks before moving those amendments.