Queensland Reverses The Presumption Of Bail For People Charged With Domestic Violence Offences

Monday 3 April 2017 @ 10.34 a.m. | Crime

Queensland has passed and assented the Bail (Domestic Violence) and Another Act Amendment Act 2017 (No. 9), which was originally introduced into Parliament by the Opposition LNP.  The Act reverses the presumption in favour of bail for alleged offenders charged with domestic violence offences, allows for courts to order a person wear a tracking device as a condition of bail, introduces a stay on the grant of bail if there has been an application for review of a bail decision, and introduces new notification provisions for domestic violence victims when an accused person makes a bail application.

Opposition Leader Tim Nicholls, who introduced the Bill into Parliament, told ABC News:

“Last year, 18 Queensland women died from domestic violence… With more than 22,000 domestic violence protection orders flowing through the courts each year, it is time for this Parliament to act, it is time to do more and make a difference to these terrible statistics. [It's] a simple rebalancing of the scales of justice ... to tip the balance in the favour of community safety.”

For more information about the original Bill, see TimeBase’s earlier article.

Committee Report

The Bill was referred to the Legal Affairs and Community Safety Committee in February, and the Committee released their report on 17 March 2017.  The Committee was ‘unable to reach a majority decision to recommend that the Bill be passed’, with Chair Duncan Pegg MP writing in the report:

“Based on the submissions lodged and the evidence provided in the public hearings, Government members were of the view that this Bill requires more consultation and significant amendment. Whilst some of the proposals in the Bill have merit, there is potential for unintended consequences and it is abundantly clear that more work needs to be undertaken in relation to this very important issue.”

Issues raised in the Committee report included the seriousness of reversing the ordinary presumption in favour of bail, with the Queensland Law Society, among others, saying that the reversal “does not take into account the complex and challenging social relationships that society is attempting to manage through the justice system.”  The Caxton Legal Centre submitted:

“There is a clear risk that if a reverse onus provision was legislated, many individuals would be refused bail and would spend much longer in custody on remand than any sentence they might receive upon conviction. This would create a most unfair system at significant public expense. There is also a clear risk of the Supreme Court being inundated with applications after a Magistrate’s refusal of bail.”

Other concerns in the report included how the new laws would affect people, especially women, who were not the predominant aggressor but were charged with reactive violence offences.  Queensland community organisation “Sisters Inside”, which advocates for women in the criminal justice system, had a number of concerns including:

“… the impact that the proposed amendments may have on women charged with reactive violence offences. Notifying violent partners of their release on bail may put these women in danger. We consider that it may be more appropriate to implement a notification obligation through policy, rather than legislation, to maintain discretion for cases involving women as alleged perpetrators.”

Government Amendments

The Queensland Government moved a number of amendments to the Bill in its final stages. Some of these were accepted by Parliament, including amending the way “domestic violence” or “relevant violence” offences were defined, and adding provisions clarifying that the court may impose any condition the court considers necessary to facilitate the operation of the tracking device.

However, the Government’s attempts to remove the part of the Bill amending the Corrective Services Act 2006 were defeated.  The Government had argued that the provisions regarding changes to the notification of information to victims were unnecessary due to the passage of the Victims of Crime Assistance and Other Legislation Amendment Bill 2016, which was also assented to on March 30.

The majority of the Act commenced on assent - 30 March 2017.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Bail (Domestic Violence) and Another Act Amendment Act 2017 (QLD), Bill, Explanatory Notes, Committee Report, Adopted Amendments & Explanatory Notes for Amendments - available from TimeBase's LawOne service

Domestic violence laws: Alleged offenders have to prove why they should get bail (Gail Burke, ABC News, 23 March 2017)

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