BILL: Bail under COVID-19 Emergency Response

Today Mark outlined the Greens' support for this Government Bill which increases the number of crimes where the presumption in favour of bail will not apply because a person has done something particularly bad during this time of crisis. He also outlined a Greens' amendment to the Bill, requiring bail authorities to take into account the fact that we are in a public health emergency. The amendment was supported by SA-Best but opposed by the Liberals or Labor so did not pass. 


COVID-19 Emergency Response (Bail) Amendment Bill 2020 

I will start by associating myself with the remarks of the Leader of the Opposition in relation to the process that this bill has gone through. We have shown a great deal of cooperation and forbearance, I think, in the last several weeks in allowing the Government to quickly bring on bills and for us to debate them and vote on them before we have had any real chance to consult with any stakeholders or engage with experts in the field. We have collectively done that, I believe, because we have all appreciated that this is a serious pandemic we are facing and that laws do need to be changed very quickly, so we have modified our usual practices to accommodate that.

To a certain extent the Government has acknowledged that level of cooperation. The difficulty with this bill is that, if cabinet had signed off on it some time ago, I would like to think they would remember that we still have the right to debate legislation and consider it, so getting a new bill on a Monday or a Tuesday and then voting on it just a few days later is pushing the envelope, but nevertheless the Greens certainly will not stand in the way of this bill.

In relation to the content of the bill, I guess to put it into some sort of context, there are times in our history when certain offences appear to be more odious than they would otherwise be. For example, when we are in the middle of a bushfire crisis and there are a large number of unattended houses as people have fled the approaching flames, the emergency has not abated and they cannot go back yet, and when people loot homes in bushfire affected areas society's perception of that is that they are more serious crimes than regular looting and housebreaking. Those crimes are always bad, are always illegal, but when they happen in those circumstances most people see that they deserve perhaps an extra level of punishment because of the circumstances in which they were committed. I think that this bill pretty much falls into the same category.

As the Leader of the Opposition said, I am keen to know, for example, whether more housebreakings are occurring at present, when my understanding is that the vast majority of people are not leaving their homes. They are at home all day, they are sleeping in their homes at night, they are not going down to their holiday homes at Victor Harbor, they are staying at home. I would be keen to see what figures the Government comes back with.

We have been told that, when it comes to breaking into and stealing from empty shops and factories and things like that, the rate apparently has gone up 28 per cent over the same period last year. I would like to see what the figures are in relation to domestic break and enters and burglaries.

Nevertheless, I think that as with the fire situation most people would think that someone who is taking advantage of this crisis to undertake illegal behaviour probably deserves to have some extra penalty attached. What the Government has done in this bill is they have basically said that in those circumstances the presumption in favour of bail will not apply to you, because you have done something particularly bad during a time of crisis. I understand that, and I can accept that.

The bill also relates, of course, to assaults on emergency workers, nurses, doctors and others, and again I think around the virtual water cooler or the virtual front bar most people would think that at this time those particular offences are particularly odious, and we want to make it very clear that they are unacceptable.

Having said that, whilst I appreciate that the government wants to appear to be doing something, one of the purposes of the criminal law system is deterrence. That is the reason we have penalties. We have consequences to deter people. My guess would be that this particular bill will provide zero deterrence to anyone. My feeling would be that if someone was going to break into a house and steal things, they are probably still going to do that. The average thief does not have going through their mind, 'Oh dear, section 10A of the Bail Act has been changed, and the presumption in favour of bail may now not work in my favour.' I might be underestimating the reasoning skills of the average thief, but my gut feeling would be that if it was intended to have a deterrent effect, it probably will not succeed.

If the intent of this bill is to show the public that we take seriously these types of offences during an emergency, well, it will achieve that, because people will think, 'Good. The parliament has done something.' Whether there is any or many cases that are actually caught by these provisions remains to be seen.

The Greens will be supporting the bill. I have moved an amendment which I will speak to in more detail when we get to it, but what I will just put on the record now is that I am terribly disappointed that neither the Liberal Party nor the Labor Party has seen fit to pay close attention to the correspondence that they have received from hundreds of lawyers and judges and retired politicians and many luminaries in the field of law and justice and human rights to the effect that the next cruise ship is not going to pull into Port Adelaide; the next cruise ship is probably already at Northfield.

The next cruise ship, the incubator for coronavirus, is probably going to be our prisons. They do not have physical distancing in gaols. These are potentially disastrous scenarios, not just for the inmates but also for those who work there, those who visit and those who provide services to people who are incarcerated.

The question then arises: well, what do you do about that? This particular bill, if it does have any effect at all, can only have one effect, and that is to increase the number of people who are incarcerated. It logically flows. If we are diminishing or reducing the presumption in favour of bail, then chances are less people will get bail, and if you do not get bail you are going to be incarcerated.

That, then, begs the question: if our prisons, gaols and Youth Training Centre are in fact the next cruise ships, waiting to incubate the coronavirus, what are we doing to reduce the prison population? I think the answer is nothing. The question, I think, needs to be: are there people who are currently locked up who do not need to be? It is common, I think, for people to think, 'Oh, well, if you're in gaol you must deserve to be in gaol,' but I think most of us deep down know that there are many people for whom gaol is not the right answer. It is the politically convenient answer—locking people up—but it is not the right answer for many people. What strikes me as quite bizarre is that the only COVID emergency measures that this Parliament is dealing with in relation to the criminal justice system are to involve getting more people behind bars and not fewer.

I want to make it very clear that I am not advocating the wholesale emptying of our gaols. I am not saying, 'Let the murderers and the rapists and whoever all free.' I am not saying that—that would be a ridiculous outcome—but there are a lot of people, especially people who are on remand, who have not been found guilty of any offence, a number of people who are in gaol for offences that do not involve violence, and maybe people towards the end of their sentences.

I am sure there is the scope to reduce the pressure in the incubator that is our criminal justice system, but neither the Government nor the Labor Party has seen fit to even discuss it. They have the evidence and they have had plenty of Australia's most esteemed legal authorities tell them what needs to be done, but they have not done one thing about it. I will have a bit more to say about my specific amendment when we get to it but, certainly for now, the Greens are supporting the second reading of this bill.

In Committee Stage, Mark moved an amendment on behalf of the Greens: 

I move:

Amendment No 1 [Parnell–1]—

Page 3, after line 7 [clause 3, inserted section A1]—After paragraph (c) insert:

(d) after section 10A insert:

10B—COVID-19 pandemic

(1) Without limiting the matters that may be considered by a bail authority in accordance with this Division, a bail authority must have regard to the circumstances of the COVID-19 pandemic and the need to guard against the spread of the pandemic.

(2) This section does not apply in relation to an application for bail by a person who has been taken into custody in relation to an offence involving violence or a threat of violence.

As I alluded to in my second reading contribution, this amendment seeks to require bail authorities to take into account the fact that we are in a public health emergency. I know members might think, 'Well, surely they would do that already.' I think the answer is that they probably will not. We have heard that some have. The Attorney-General's response to me in relation to this was, 'Well, they can take into account that we are in the emergency when deciding bail applications.'

Just to tease this out, the sections that we are talking about in the Bail Act include section 10, which is described as the presumption in favour of bail. It basically says that the bail authority can take into account a whole lot of things that might overturn the presumption in favour of bail. The classic example is that they think the person will reoffend. Well, if they think the person is going to reoffend, you better not let them out on bail. That sort of makes sense. We are very comfortable and familiar with that.

The Government's rationale for not approving my amendment relates to section 10(g) 'any other relevant matter.' At one level, you can say, 'Oh well, I suppose the bail authority could take into account that we are in a COVID-19 pandemic.' They are not obliged to. It is not set out anywhere. They could take the initiative to take it into account, but they certainly do not have to. That is section 10.

Section 10A, as we have been talking about, is the presumption against bail, and the bill that we are going to pass today actually increases the range of offences for which there will be a presumption against bail. My amendment is to insert a new clause 10B, which basically does not provide either a presumption for or a presumption against bail, so it does not neatly fit into either of those categories.

It basically says that without limiting any of the things that a bail authority has to take into account they must have regard to the fact that we are in a COVID-19 pandemic. It obliges them to put their mind to it. It does not tell the bail authority, 'Therefore you must grant bail,' or, 'Therefore you must deny bail.' It does not seek to tell them what to do; it tells them to take it into account, which is consistent with every other bit of COVID legislation that we have been passing over these last several weeks.

To make it crystal clear, I am not interested in letting violent offenders or people accused of violent offences out on bail, so I have put in a particular provision that says that the requirement to take COVID into account does not apply to violent offences. I do not want to be said to be trying to let inappropriate people out loose in the community when they may well need to be incarcerated for the protection of the community.

Honestly, I thought this was about as meek and mild an amendment as could be conjured up, given that it is limited only to bail applications. I said before in my second reading contribution that there is a separate issue of whether there are a whole lot of people already in gaol who perhaps do not need to be there and are adding to the risk to the workers in gaols, the prisoners themselves and their visitors.

My amendment does not deal with any of these people, convicted or otherwise, already in gaol. It only deals with routine bail applications, and it simply requires bail authorities to take COVID into account. I could not have thought of a more innocuous or simpler amendment that is stating the bleeding obvious, to put it in the vernacular, and I am disappointed that neither Liberal nor Labor has seen fit to support it.