Free Newsletter sign-up
Search Justinian
Justinian's news stories

Judge shoots a few people on his way out the door ... Justice Peter Murphy says farewell to the Family Court ... An incendiary valedictory speech ... Barbed comments about political appointments to the bench ... Two Wigs Willy and Pascoe "should hang their heads in shame" ... Read more ... 

Justinian Columnists

For whom the Bell tolls ... A long time ago in a city far away, Alan Bond built an empire based on borrowed money ... Bell Group litigation still keeping an army of lawyers well fed in the top paddock ... History of a corporate calamity and a lawyers' bonanza ... 19 years later where are we? ... Read more ... 



This form does not yet contain any fields.

    "That seems to be the only thing that drives them. Getting hold of power, to wield it." 

    Prime Minister Scott Morrison on the Labor Party. March 4, 2019 ... Read more flatulence ... 

    Justinian Featurettes

    Too much mush ... James Baldwin doused in a layer of syrup ... US justice ... Where's Atticus Finch when you need him? ... Black lives, white injustice ... Miss Lumière reviews If Beale Street Could Talk ... Read more ... 

    Justinian's archive

    Heart of the bar ... News from the Street of Shame ... Deutschland marshalling forces ... The Sevens rub tummies ... Eating and talking ... Interviews with Queens' Counsel ... Advocacy skills require being in many courts at once ... From Justinian's archive, September 2014 ... Read more ... 



    « Fishing for the good ones | Main | The saga of Jimmy Savile »

    Bail out

    New South Wales' new bail legislation ... Presumption against bail still there in all but name ... Juveniles get one extra chance to reapply ... In last 30 years the proportion of the prison population on remand has doubled ... Legislation designed to please the police ... Former magistrate Max Taylor reports 

    NSW police: setting the agenda on bail reform

    THE Report on Bail presented to the Attorney General by the NSW Law Reform Commission in April last year represented the high tide of hope for the poor, the drug affected, the mentally ill, the intellectually impaired, the Aboriginal and the young  on remand.

    It was not to be. The police shouted and the government trembled.

    On November 28, 2012 the Premier announced a new risk management approach for deciding who should and should not get bail. The police welcomed the decision.

    On April 30, 2013 the Attorney General Greg Smith noted:

    "This legislation will put the safety of the community, victims and witnesses first, rather than focusing on the alleged offence according to a complex system of presumptions."  

    He also noted that the upcoming Bail Bill, "had the support of NSW Police who can enforce bail conditions and arrest those that fail to comply". 

    In 1982 those adults denied bail made up 12.3 percent of the gaol population. There was no complex system of presumptions when the Labor Government introduced the Bail Act in 1978. Other than for aggravated robbery offences there was a presumption in favour of bail.

    The complexity was caused by decades of amendments creating presumptions against bail, neutral presumptions and bail only in exceptional circumstances.

    The percentage on remand in gaol now stands at 26 percent. The percentage of juveniles is even higher - an absolute disgrace. 

    According to Clause 17 of the Bail Bill unacceptable risk arises if the person released from custody will: fail to appear at proceedings for the offence; commit a serious offence (as defined); endanger the safety of victims, individuals or the community; interfere with witnesses or evidence.

    It is difficult to maintain the current Bail Act emphasis on the "interests of the person" as a consideration equal to the probability of appearance and the protection and welfare of the community in a system based on unacceptable risk.

    The Law Reform Commission pointed this out and also the difficulty of incorporating basic legal principles within such a model.

    It recommended a presumption in favour of bail and entitlement unless the authority is satisfied that refusal of bail is justified. 

    In the Bill the defendant's concerns to prepare his or her case and to carry out any other lawful purpose are reduced to being part of a long list of matters to be considered in deciding if there is an unacceptable risk.

    Clause 3 states that a bail authority is to "have regard to the presumption of innocence and the general right to liberty". That is hardly a presumption in favour of bail. 

    Victoria uses an unacceptable risk test. Section 4 of the Victorian Bail Act 1977 commences with the words: 

    4. Accused held in custody entitled to bail 

    (1) Any person accused of an offence and being held in custody in relation to that offence shall be granted bail. 

    It is true that subsequent sub-sections contain reference to a presumption against bail for a number of offences. However, the opening lines are a clear presumption in favour of bail.

    The NSW Police Force in its submission to the Law Reform Commission enquiry said it did not want the Victorian approach, preferring a simple process unencumbered by presumptions. The opening lines of s.4 of the Victorian Act do not appear in the NSW Bill.

    Clauses 18-20 explain that if there is an unacceptable risk then the person is denied bail, unless bail conditions can resolve the issue. Such an approach is a long way from a conscious concern about the defendant through a presumption in favour of bail and conditions where necessary.

    Clause 21 provides for a right to release for fine-only offences and offences under the Summary Offences Act.

    Certain serious matters do not attract a right to bail. The government's approach on this matter is in line with the Law Reform Commission's report. 

    The Law Reform Commission recommended that directions by bail authorities that enforce bail conditions, for example submission to drug and alcohol testing, specify limits on frequency, place and time of use.

    This is provided for in clause 81 but the same clause also provides that a police officer can give a direction at any other time the officer had a reasonable suspicion concerning a contravention. 

    It is widely accepted that putting teenagers in gaol should be a last resort.

    The young might have hoped that the Law Reform Commission's recommendations that juveniles not be subject to tough law on repeat bail applications would be accepted.

    In clause 74 the government has rejected this proposal, providing instead for one extra chance.

    The recommendation that adults get two chances before such law applies has also been rejected.

    The Bill does provide for less complexity and it is written in plain English.

    Clause 12 eliminates the need to deal with renewal of bail every time the matter comes back to court.

    However, simplicity is no substitute for fundamental principle. The Bail Bill 2013 represents a giant step away from the fundamental principles underpinning Western values on bail. 

    Max Taylor (pic) is a retired magistrate currently undertaking a PhD on the politics of bail in NSW.

    See: NSW Law Reform Commission Bail Report 2012

    See: Bail Bill NSW, 2013 

    References (5)

    References allow you to track sources for this article, as well as articles that were written in response to this article.
    • Response
      Bail out - Bloggers - Justinian: Australian legal magazine. News on lawyers and the law
    • Response
      L’iniziativa SOTTO UNA BUONA STELLA Foggia, le sarto codice sconto per LightInTheBox rie solidali con i volontari della Caritas A disposizione di tutti coloro che sono in gravi condizioni sociali ed economiche,codice sconto per LightInTheBox, italiani e stranieri FOGGIA
    • Response
      Response: 钢结构防腐
      北京时间3月10日消息,据香港媒体报道,章子怡与富 [101213]龙颜大悦027期:卡通号娱乐八卦天涯论坛 商男友Vivi分手后,立刻与旧爱 烟筒脱硫 霍启山复合,最近她还秘密前往香港会情郎。如沐春风的章子怡昨天(3月9日)现身中环购物时,被追问前往香港“蜜”会霍启山一事,她闻言甜笑默认。 32岁的章子怡绯闻多姿多采,04年还跟年轻四年的霍启山迅速地发展姐弟恋,但二人恋情只维持两年便告终。直至去年章子怡与以色列裔的美国富商Vivi分 「 张 韶 涵 」家人互殴 ,再闹家丑 ,这一家子的事比电视剧还精彩。。(转娱乐八卦天涯论坛 手后,回复单身的她,立刻传出与旧爱霍启山复合。据知二人复合后感情更胜从前,爱得痴缠的章子怡纵使工作繁忙,[101213]龙颜大悦
    • Response
      Response: Mad Men dvd
      Mind if I come downstairs with you?Do not remember the hatchet it usual Boardwalk Empire dvd set 1-6 ly refers to the meaning of the expression "down. Really cheap. God's plan. until Banshee box set Season 3 the next day a lot of girls in the online issue of protest, No ...
    • Response
      Denny Crane: I'm Cheap Doctor Who Season 8 not getting up !Season4- double female spy plane fourth quarter A How I Met Your Mother Seasons 1-9 on sale lias. he's dead Alan Shore:. Star Zionist mind ------- (conclusion) Dark Angel ------- (conclusion) Terminator: The Sarah Connor Chronicles ------- (unfinished) Sanctu Angel ...

    Reader Comments

    There are no comments for this journal entry. To create a new comment, use the form below.
    Member Account Required
    You must have a member account on this website in order to post comments. Log in to your account to enable posting.