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Australia: Bail Presumption Reversed for Domestic Violence Cases in Queensland

(Apr. 14, 2017) On March 30, 2017, the Bail (Domestic Violence) and Another Act Amendment Act 2017 (Qld) received assent, following its passage by the Queensland Parliament on March 22. (Bail (Domestic Violence) and Another Act Amendment Act 2017 (Qld), Queensland Legislation website; Gail Burke, Domestic Violence Laws: Alleged Offenders Have to Prove Why They Should Get Bail, ABC NEWS (Mar. 22, 2017).)  The objectives of the bill, which was introduced by a member of the opposition Labor Party, were to

  1. reverse the presumption of bail for an alleged offender charged with a relevant domestic violence offence;
  2. establish a special bail condition for a tracking device (or GPS tracker) to be imposed by a court or a police officer authorised to grant bail, against a person charged with a relevant domestic violence offence;
  3. introduce a new system to alert the victim of a relevant domestic violence offence when the defendant applies for bail, is released on bail, or receives a variation to a bail condition;
  4. introduce a mandatory reporting provision to the parole system for when a prisoner applies for and receives parole, so that a victim of domestic violence can receive information about a prisoner, even if the offence that the prisoner was convicted for is not a domestic violence offence; and
  5. introduce a provision to allow for an urgent review of a bail decision in a higher court. The original bail decision would be stayed for up to three business days ensuring that the alleged offender would not be released during that period. (Bail (Domestic Violence and Another Act Amendment Bill 2017: Explanatory Notes 1 (2017), Queensland Parliament website.)

In implementing most of these proposals, the final bill amended the Bail Act 1980 (Qld) and the Corrective Services Act 2006 (Qld) (Queensland Legislation website). For example, the Bail Act 1980 was amended to

  • allow a court to impose a bail condition that a tracking device be worn by a defendant while on bail (Bail (Domestic Violence) and Another Act Amendment Act 2017 (Qld), s 4, inserting new s 11 into the Bail Act 1980 (Qld));
  • enable a court to consider the risk of further domestic violence where a defendant who is seeking bail is charged with a domestic violence offense (id. s 6, inserting new s 16(2)(f) into the Bail Act 1980 (Qld)); and
  • provide for a prosecutor to apply for a review of the bail decision and for the decision to be stayed while the review is completed, or otherwise for three business days (id. s 7, inserting new s 19CA into the Bail Act 1980 (Qld)).

The Corrective Services Act 2006 was amended to include among those who are eligible to be notified of a prisoner’s parole release people who provide evidence of the prisoner’s domestic violence against them, whether or not the imprisonment was due to such violence.  (Id. s 11, inserting new s 320 into the Corrective Services Act 2006 (Qld).)

A proposal to make it “mandatory for victims and their families to be formally notified when perpetrators were granted bail or parole” was rejected by the Parliament, with the state attorney-general saying that there were already provisions in place for this to happen. (Burke, supra.)  Government members of the Parliament also made other amendments to the bill, including an amendment to “ensure the bail reforms would apply to high-risk offenders, including those charged with strangulation, stalking and even animal cruelty charges.”  (Id.)

The bill was introduced after a woman was killed by her estranged husband in January 2017.  The husband had been released on bail for domestic violence offenses against his wife.  (Id.)

A spokeswoman for Queensland Women’s Legal Service congratulated the Labor Party for taking swift action, but stated that the organization does not agree “with their proposal of a blanket reversal of onus in bail apps in all DV [domestic violence] matters. . . [We] prefer an approach that is more nuanced, we prefer an approach where an extension of high-risk matters — where a defendant must show cause — to include high-risk DV matters.”  (Id.)