The NSW Parliament has today resumed debate on the Government's Bail Amendment Bill 2014. NSWCCL strongly opposes the Bill.
The Government’s decision to respond to a narrow section of the media and hastily and prematurely review the new Bail Act is now history. It acted with indecent and unwise haste in the face of widespread professional and expert advice that review of the Bail Act was seriously premature and would have to reach conclusions without access to meaningful operational data.
This unsound process has produced a Bill which should be rejected by Parliament as unwarranted and retrograde draft legislation. If the amendments to the Act are passed, the effect will be to graft onto a coherent, unified, clearly grounded and eminently workable system under the 2013 Act a number of qualifications of the kind that wrecked the original 1978 Act.
NSWCCL has two major principled objections to the Bill.
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, with all their faults, back onto the scheme of the 2013 Act. It introduces complications for no clearly discernible legitimate benefit. The effect will be to transfer more power to the police, by their selection of charges before the Office of the Director of Public Prosecutions has a chance to exercise independent judgment in charge selection.
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 and imposes upon the accused to prove that it should not apply.
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. This will no longer be so in respect of these offences. The mischief done by these provisions is tacitly acknowledged by the exemption of juveniles from the scheme.
NSWCCL has recommended the Bill be withdrawn by the Government or failing that rejected by Parliament. If the Bill is to proceed we have further recommended it should be referred to a Parliamentary Committee for consideration of its implications in relation to the reversal of the onus of proof and the reintroduction of ‘show cause ‘offences and to allow proper public consideration of the Bill