30 / 5 / 2024

Preserving the Balance: Bail Law Reform in NSW

In New South Wales, bail laws serve as a critical mechanism for balancing individual liberties with community safety in order to preserve the golden thread – the cornerstone of our criminal legal system – that everyone is presumed innocent until proven guilty. Recent tragic events have sparked calls for hasty reform to NSW’s bail laws, particularly regarding domestic violence offences. While it is essential to address evolving concerns and to review the efficacy of the current bail regime, a knee-jerk reaction to toughen bail laws is not the answer and could lead to situations where individuals, whose guilt has not been established, are unjustly deprived of their liberty.

Contrary to popular belief and current discourse, it is not necessarily easy for an accused to get bail and no grant of bail is without risk. Under the Bail Act in NSW, certain individuals must show cause as to why they should be granted bail, especially for serious offences like murder, sexual offences, and firearms offences. This requirement places a significant burden on the applicant, making it more difficult to obtain bail.

In addition to any show cause considerations, Judges, Magistrates and Registrars must perform a predictive exercise, assessing a person’s risk of interfering with witnesses, failing to appear and/or committing further offences before granting bail. If any of these risks are relevant, the Judicial Officer must be satisfied that the risks can be mitigated by the imposition of bail conditions before that person will be granted bail. If there is an unacceptable risk that simply cannot be mitigated by conditions, bail will be refused.

This is an understandably difficult decision. No one has the benefit of a crystal ball. The Judicial Officer determining bail must review the alleged facts, have regard to the charges and then be informed of the applicant’s circumstances and any proposed conditions in order to determine bail. Essentially, bail is all about identifying and managing risk on a case-by-case basis. There is an appreciable concern that any overarching hardening of bail laws could limit the Court’s ability to look at each case on its own merits, balance any risks and apply individualised justice.

The Act has remained largely unchanged for over a decade. The last amendment to the NSW Bail Act in 2022 hastily introduced section 22B, requiring that a person who pleads guilty or is found guilty of an offence for which they will be sentenced to imprisonment must have their bail revoked while awaiting sentence unless exceptional circumstances exist. The introduction of this section seemed to occur without proper consultation with many interested stakeholders. The amendment created significant challenges for the Courts (in particular the already overloaded Local Court) requiring them to perform quasi-sentencing of offenders to determine whether to revoke bail while awaiting actual sentence proceedings, often months later. Revoking bail at this stage of proceedings can mean that people awaiting sentence are unable to undertake or continue programs and demonstrate rehabilitation prior to being sentenced.

It is hoped that any further amendments arising out of recent events will not be so hasty. Impulsive and ill-considered reform can lead to quickly crafted laws that overlook the unintended consequences of poorly considered changes. A measured, thoughtful and consultative approach to legislative change is essential to ensure that laws are effective, well drafted, balanced, and aligned with societal values.

In considering any legislative change, it is crucial to have regard to the wider impacts of any amendments, particularly on marginalized communities. Indigenous Australians and those from lower socioeconomic backgrounds are already disproportionately affected by bail laws. Any reforms must be mindful of these disparities and work towards creating a more equitable justice system for all.

Furthermore, overly restrictive bail laws can have detrimental effects on individuals, families, and communities. Pretrial detention can lead to job loss, housing instability, and strained relationships, all of which can increase the likelihood of reoffending.

Stricter bail laws could overwhelm an already strained prison system. It will be a challenge for prisons to accommodate a significant increase in inmates, potentially compromising the safety and well-being of both inmates and staff.

While the Government is to be commended on its willingness to address an issue that is of great concern in the community, it is hoped that any legislative changes to the Bail Act follow careful consultation and consideration. By resisting a knee-jerk reaction, we can maintain a fair and effective bail system in New South Wales, balancing community safety with the court’s ability to apply individualized justice.

Helen Christinson, Partner