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 

Update on Friday, May 24, 2013 by Justinian

The Bail Bill passed the upper house on May 22 and the Act will come into force in 12 months time.