Proposed amendment to NSW bail laws : indecent and unwise haste

The Bail Act 2013 was a product of two years’ work by the Law Reform Commission and a team of experts. The Report was tabled in 2012. The Government then carefully considered it and in 2013 passed a new Act which did not merely rubber-stamp the LRC Report. The Act was passed unanimously – no politician, from any party, in either House, voted against it.

There was then a delay while the criminal justice agencies absorbed the changes, trained staff, prepared processes and documentation and got ready for implementation. A great deal of administrative work was done by Police, DPP, Legal Aid, Bar Association, Law Society, Courts, etc.

The Act came into force on 20 May 2014, with much fanfare from the Attorney General. Soon after there were three high profile cases of bail being granted (Hawi, Fesus and Ibrahim). The tabloid media agitated. The DPP appealed the Ibrahim matter and his bail was refused – the system was working as it was intended to. A reading of the judgments in the other two cases would show that principles were properly applied and the decisions were uncontroversial.

On 27 June 2014, just over five weeks after the Act came into effect and before any meaningful data had accumulated (as acknowledged by Mr Hatzistergos), the Premier announced a review, supposedly because the Act was not protecting the community as much as had been intended.

The review was done in just over four weeks by one person. His Report was published today (5 August 2014), a Bill is ready (implementing all the reviewer’s recommendations) and it will go to Parliament next week.

The Government has acted with indecent and unwise haste. There has been no consultation with anyone about the recommendations or the substance of the Bill.


A couple of recommendations are not so controversial and may be regarded as “tidying up” – namely the collapsing of the unacceptable risk test from two stages to one and the amendment of a risk factor from a pattern of non-compliance to a history of non-compliance.

Some recommendations are unnecessary – for example the “belt and braces” approach to specifically including the wishes of victims, etc. They are already considered.

But some recommendations are harmful of the rights of citizens. The presumption of innocence (handed down through common law for centuries and in Article 11 of the UDHR) has been watered down by moving it from a consideration (as it should be) to a motherhood statement in the Act’s Preamble (or some such). The right to be presumed innocent cannot be cast aside in this way.

The creation of so-called “show cause” offences constitutes a reintroduction of presumptions against bail for prescribed offences by the back door. The presumption scheme was soundly criticised in the revamp of the Bail Act and this grafts presumptions against bail back onto a scheme that is otherwise unified, clearly grounded and eminently workable. It introduces complications for no clearly discernible benefit.

Further – and more seriously – the onus of proof has been reversed in relation to those offences. Article 9 of the ICCPR states (in effect) that remand in custody is not to be the default position for people – any people – charged with offences, yet this creates such a position. If one’s right to liberty is to be taken away, then the onus has always been on the party that seeks to remove it to establish lawful grounds for doing so – but no longer, in respect of these offences. The mischief done by these provisions is acknowledged by the exemption of juveniles from the scheme (which is unjustifiable on any rational grounds).

It is to be hoped that the Bail Monitoring Group and other bodies involved in NSW’s bail regime will work against these provisions becoming law.