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October 2014

Legislation

• Bail Amendment Act 2014

LEGISLATION

Updated 21 October 2014

Bail Amendment Act 2014

The Bail Act in NSW was heavily revised in 2013 and commenced in 2014. This was only done after an extensive review of the law. The Bail Act 2013 removed many of the previous complications and restrictions contained in the Bail Act 1978 with regard to the grant of bail. Under the Bail Act 2013, a simplified set of requirements for the grant of bail was provided. A basic test of unacceptable risk is the foundation for an assessment of the grant of bail. Four separate types of risk are identified. They are: a risk of failing to appear at any proceedings for the offence, a risk of committing a serious offence while on bail, a risk of endangering the safety of victims, individuals or the community or a risk of interfering with witnesses or evidence. Certain mandatory factors must be taken into account to decide whether a risk is unacceptable. If the risks are found not to be unacceptable then the person should be released or perhaps admitted to self-bail.

Even if a risk is determined to be unacceptable, consideration must be given to whether that risk can be mitigated by the imposition of conditional bail. If conditions of bail mitigate an unacceptable risk then bail can be granted under those conditions.

Importantly, the Bail Act 2013 removed the presumptions against the grant of bail, which were part of the earlier Act that had been heavily criticised for leading to complications and unnecessary restrictions for the grant of bail. Under the Bail Act 2013, there was no alleged offence for which there was a presumption against the grant of bail. All applicants were entitled to bail, subject to the unacceptable risk test, no matter what offence they had committed.

The new Act has now been in operation for less than half a year but in that time, it has been subject to a wave of criticism. It appears that the criticism can be summarised as a concern that bail is now easier to be granted in cases of alleged serious offending. I won't detail the criticism here but a Google news search will provide more than enough information as to its character. Even though Don Weatherburn, director of the NSW Bureau of Crime Statistics and Research, wrote to the Sydney Morning Herald stating that there was "no evidence" that bail was easier to get under the new laws or that the risk of offending on bail had risen, a review of the Bail Act 2013 was ordered by the Government.

As a result of that review, there is now a new Bail Amendment Act 2014. I should emphasise that this Act has not commenced. The Bail Act 2013 is still current.

However the Bail Amendment Act 2014, should it ever become law, is set to make very substantial changes to bail law in NSW. Unlike the Bail Act 2013, the Bail Amendment Act 2014 carries with it a complicated and potentially difficult new test. What must now be determined under the Bail Amendment Act 2014, before the unacceptable risk test is applied, is whether an applicant is charged with a show cause offence. The Bail Amendment Act 2014 provides that "a bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified": see s 16A. Section 16B then proscribes which offences are said to be "show cause" offences. The list of offences is potentially so extensive that I have not attempted to outline them here. Ultimately, due to the broad description of some of the offences, to determine what offences are and what offences are not show cause offences might require a definitive decision of a superior court. As an example though, a show cause offence is said to include "a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused person has previously been convicted of a serious personal violence offence". A serious personal violence offence is defined as "an offence under Part 3 of the Crimes Act 1900 that is punishable by imprisonment for a term of 14 years or more". Part 3 of the Crimes Act 1900 covers offences from ss 17A to 93 inclusive. This is just one small part of the list of "show cause" offences contained in the Bail Amendment Act 2014.

Assuming that an applicant for bail can "show cause" for a grant of bail under the Bail Amendment Act 2014, then the unacceptable risk test continues to apply to that application. What factors a court might take into account to determine whether a person has shown cause for a grant of bail is not outlined in the Bail Amendment Act 2014. Although it might seem circular, the argument that an applicant could use to show cause would likely involve at least some of the same matters that could be taken into account with respect to the test of unacceptable risk and for the grant of bail on conditions.

The reason for raising the issue in respect to the Bail Act 2013 now is twofold. Firstly, to remind everyone that the Bail Amendment Act 2014, despite the publicity, has NOT commenced. Secondly, to highlight the potential changes that the Bail Amendment Act 2014 will involve for an applicant seeking a grant of bail should that Act ever be commenced in its present form.

Some content sourced from FirstPoint powered by Australian Digest.

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