Bail Centralisation and the Virtual Bail Court: NSW Staggers into a Reform Overreach

The NSW Government is about to introduce a new bail regime where all of those who are charged with a fresh offence have their first appearance via AVL or telephone – centralised and staffed in Sydney. This is part of a reform package that includes the removal of justices (i.e. not magistrates or judges) determining bail on weekends. That latter reform is long overdue, but the centralised new-offence remote bail provisions are seriously flawed and ill-advised.

Here’s how it used to work.

I would be sitting on a Wednesday in Lismore and my hearings have almost finished and it is 3 pm. A note is handed up me saying there is a fresh custody, JB, and he will be making an application for bail. His Aboriginal Legal Service lawyer is on her way. JB is well known to me. His offending is deeply connected to his mental health issues. I have dealt with him a lot, as have the local police, and his offences tend to be nuisance, but he can be threatening. I have sat in the Children’s Court relating to his brood, a civil case involving the police and his eldest son and seen the ongoing efforts he has made to overcome his drug addiction and mental health issues. I, along with his mob, have tried to encourage rehabilitation in Circle Sentencing and he is well connected and supported by elders, friends and family. Usually, bail is opposed by the police unless there are family members present to take him on (again), and regularly there are.

It is 3.30pm and the family has rallied. They speak directly to me on the bail application, and we fashion some bail conditions that will work for them, for him, and fit in with the court support and therapeutic interventions. In particular, his aunty who I know from another committee, is vouching for him. We make his reporting conditions light, knowing that interactions with the police can be problematic on a bad day and public transport nonexistent. We know that the registrar can vary his reporting if necessary and unopposed. In the light of all of that, the prosecutor dashes from court for a minute to speak with the Aboriginal Police Liaison officer and DV support workers and bail is not opposed. A least worst option all round.

There is another bail matter now too. A defendant has been charged with a threaten and stalk domestic offence. The alleged victim is a frail troubled young single mum, herself a regular in court, mainly for shoplifting. The informant police officer is well known to me as a notoriously easy going and all-round softy. A fight in a pub will usually lead to an offensive conduct charge rather than assault and affray. If this officer views the threats as serious, then they likely are. The defendant appears before me, and even though his record shows no convictions, there are many DV entries, and I remember him vividly. Every time the complainant would not appear or would come to court and testify that she cannot remember. Needless to say, bail will be a real hurdle.

And that is the job of the country and often suburban magistrate. You get to know your community, your police, your offending regulars, the support services available and the local conditions. And you get to know your prosecutors and lawyers – those who you can rely on, and those not so much.

Yet, under the new rules, neither defendant would appear before me on this Wednesday. Indeed, I could just go home because I would not know that any fresh custody matters are in the cells. The Aboriginal Legal Service will not be called in because they are not participating – itself a huge loss. The prosecutor and defence lawyers are unknown to the defendant. The family obviously will not readily be available to attend. All that local knowledge gives way to relative ignorance. Indeed, the first defendant is likely to be refused bail, and the second one granted. The community is less safe and so are the defendants themselves. It is arse around. Any variation of bail however minor now needs to go before a court even if it is by consent.

And let’s not get started on the technical problems that can and do occur. I now run a law school with a lot of online students and missing a lecture on constructive trusts because the internet falters or there is a blackout is not as problematic as where the magistrate cannot see or hear a party on a crucial determination about liberty and safety. And the Downing Centre just flooded and lost all communications.

And that is why I have been speaking out against this radical change. I have been joined publicly by the Aboriginal Legal Service and shadow Attorney General Paul Toole and the leader of the opposition Mark Speakman SC – not usual bedfellows. Defence lawyers, barristers, legal aid lawyers and prosecutors I have spoken to all oppose these reforms. The breadth of opposition is telling.

This is a classic example of a necessary reform – the removal of registrars on weekends – overreaching to an un-trialled and destructive proposal.

The NSW Government and judicial officers promoting this change really need to swallow their pride and take a step back. Let’s trial it in a single country court and see how it goes, with external evaluation by an independent body. Otherwise, we could be left with the wrong people in prison, dangerous people on the street, years of local experience going to waste, and a lot of Local Court judiciary looking at bail decisions that just don’t work. In theory they’ll have more time for other cases – but I suspect that will be eaten up with variation applications to fix citified mess.

Not a great outcome for anyone.