BAIL AMENDMENT BILL (NO. 2) 2015 Second Reading Speech

Northern Territory Second Reading Speeches

BAIL AMENDMENT BILL (NO. 2) 2015

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Madam Speaker, I move that the bill be now read a second time.

The Bail Amendment Bill (No 2) 2015 proposes to amend the Bail Act to allow the Youth Justice Court to consider the use of an electronic monitoring device as a condition of a bail conduct agreement. The bill will thus provide an additional level of supervision for youths subject to a bail undertaking issued by the Youth Justice Court.

Section 27(2)(a) of the bill empowers a court to impose a conduct agreement as part of a bail undertaking. The conduct agreement requires an accused person to observe specified requirements as to their conduct while on bail. The conduct agreement clauses of the Bail Act apply to both adults and youths. Section 27A of the Bail Act contains the conditions that a conduct agreement may include. Section 27A(1)(ia) relates to the use of an electronic monitoring device and section 27A(1)(ib) relates to the use of an improved voice recognition system.

These provisions were inserted into the Bail Act by the Justice, Corrections and Other Legislation Amendment Bill in 2011.

A Youth Justice Court is currently precluded from considering an electronic monitoring device or voice recognition as part of a conduct agreement, due to the use of the words ‘other than a Youth Justice Court’ in section 27A(1)(ia) and 27(1)(ib) of the Bail Act. This means that in circumstances where a youth court is of the view that the devices would assist in assuring compliance with the bail undertaking, they cannot consider ordering the fitting and use of devices as a condition of bail.

Stakeholders have noted that precluding a Youth Justice Court from even considering electronic monitoring hampers the court’s ability, the ability of police and the ability of the Department of Correctional Services to properly monitor compliance with the bail and unnecessarily limits options available to a Youth Justice Court when considering conditions for bail.

Clauses 5(2) and 5(4) of the bill omit the words ‘other than a Youth Justice Court’ from sections 27A(1)(ia) and 27A(1)(ib) respectively, thereby allowing a Youth Justice Court to have the ability to consider whether an electronic monitoring device or voice recognition system should form part of a bail undertaking for a youth appearing before it.

Courts cannot simply order the fitting of these devices on their own motion. The Department of Correctional Services must provide a report to the court under section 28 of the act. The report relates to the suitability of a person to be fitted with a device, and the court must consider the report when deciding to exercise its discretion to order the fitting of the device.

The criteria the Commissioner of Correctional Services uses to assess the suitability for the fitting of the electronic monitoring device includes the youth’s ability to comply; the suitability of the residence; the level of support and supervision from carers or guardians; the impact the device may have on other residents, for example, siblings; and the proximity of Correctional Services staff to manage the requirement of the device.

This bill contains a number of other amendments that relate in most to electronic monitoring and the amendments are as follows.

Firstly, section 27A(1(ia) of the act does not contain a condition that an electronic monitoring device not be tampered with, removed, destroyed or otherwise interfered with by the accused person. Such a requirement is an integral part of the bail undertaking where the device is issued and has been inserted through clause 5(3) of the bill. The clause ensures there is a clear obligation on accused persons fitted with the device not to tamper with it or destroy it.

Secondly, the purpose of issuing the electronic monitoring device is to assist in the monitoring of an offender who is subject to a conduct agreement. This includes ensuring that curfews are complied with, residential conditions are complied with and exclusion areas are complied with. The tracking abilities of the device also provide an incentive for the accused person not to reoffend or breach bail conditions as their location can be plotted at all times. Therefore, when a breach of condition of bail relates to tampering with, the destroying or damage or removal of an electronic device, the Bail Act must treat the type of breach more seriously than other breaches, as arguably the only reason a device would be tampered with or destroyed would be to assist in an undetected breach of the bail undertaking. Section 38(2A) of the bill already contains a mechanism whereby a court must revoke bail if a breach of condition relates to a prescribed matter. Clause 8 of the bill inserts a new prescribed matter where a breach of bail relates to contravention of section 27A(1)(a).

Thirdly, the Bail Act does not contain provisions relating to costs recoverable by the Northern Territory where an electronic monitoring device is damaged or destroyed. Such a provision has been included in both the Correctional Services Act, section 198 refers, and the Sentencing Act, section 39Q refers, relating to damage to devices issued under those acts. Clause 9 of the bill rectifies this oversight by including a provision substantially similar to the sections discussed above in the Bail Act regarding costs recoverable to the Northern Territory where the device is tampered with, damaged or destroyed.

Fourthly, Clauses 4 and 5 (1), 6 and 7 of the bill contain miscellaneous amendments to the Bail Act that ensure the terminology is consistent within the act and between acts. The amendment at clause 4 cures an incorrect cross reference to the Correctional Services Act. The amendment at clause 5(1) relates to inserting the word ‘using’ before the words ‘a drug’’. The Misuse of Drugs Act and the Medicines Poisons and Therapeutic Goods Act use the term ‘use’ rather than ‘consume’ when referring to drugs, and this amendment simply ensures consistency within this terminology.

The amendments at clauses 6 and 7 relate to omitting the word ‘condition’ and inserting the word ‘provision’. Again, the amendments simply ensure consistent terminology is used through the act. Finally, clause 10 inserts a transitional provision. The transitional provision is required to ensure the bill contains a clear explanation as to what matters the amendments apply to. Clause 10 notes that the amendments to section 27A apply to any grant or variation of bail that occurs after commencement and the clause notes that the amendment of section 38 applies to any breach of bail that occurs after the commencement.

The amendments provide a Youth Justice Court with an additional option to consider when considering conditions of bail and will assist Northern Territory Police and the Department of Correctional Services in enforcing compliance with the bail undertaking. The use of an electronic monitoring device may also provide a deterrent to the subject persons from committing offences while breaching bail whilst fitted with the device, given their location can be monitored without the need for physical surveillance by law enforcement authorities.

The Youth Justice Framework 2015-2020 contains an action item relating to intervention and prevention. The aim of Item 2 is to ensure that young people at risk of offending are identified early and targeted to prevent or divert them from engaging in antisocial or offending behaviour. Item 2.3 relates to programs to increase eligibility and compliance with bail conditions, and it is hoped that in providing great escape to the Youth Justice Court when considering bail conditions will assist in achieving the aim of this item.

I commend the bill to honourable members and table a copy of the explanatory statement.

Debate adjourned.

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