The Centralised Bail Saga in NSW Continues

Oh dear, this is getting very very messy.

Commencing next week in NSW, all new bail matters will be dealt with centrally by a new Bail Division of the NSW Local Court. I have already written and spoken extensively about this and raised concerns, suggesting that the program should have been at least trialled first in one country court, and that local knowledge will be lost.

My involvement kicked off with an interview on the ABC, and their subsequent story ran online and on-air. The key takeaway from the Aboriginal Legal Service was that this could have dire consequences for their clients and their ability to properly represent them. The Attorney General chimed in defending the scheme on the basis of efficiency. All pretty normal so far.

The Daily Telegraph next contacted me and their story featured commentary from Paul Toole, the member for Bathurst, and also the shadow Police Minister. Mark Speakman SC, the ex-Attorney General and now the leader of the opposition also opposed the centralisation. It is worth considering Paul Toole’s comments in detail.

Opposition police spokesman Paul Toole said he had major concerns bail centralisation would result in more recidivist offenders in rural areas getting out.

“Everyone is fed up with these city-centric magistrates who continually let people off on bail, who then go out there and reoffend in our communities,” Mr Toole said.

“City magistrates don’t understand the communities, they don’t know what local supports are in place, they don’t know the families on the ground.”

Mark Speakman SC, commented that:

“We’re very concerned about centralising all first bail hearings to video-link with Parramatta,” Mr Speakman said.

“It’s a decision that can impact lives, families, and community safety”.

“Magistrates via video in one central location are deprived of the ability to judge a person face-to-face and to understand local issues – it might look efficient on paper, but in the real world, it risks injustice on both sides.”

So, the principal concern of the Opposition was the centralisation in Sydney, and this was obviously now a political issue, with government and opposition spokespersons engaged in tit-for-tat commentary. Again, nothing unusual about that.

I then wrote my Substack article, which was reproduced on the Sydney Criminal Lawyers go-to website, reflecting on the changes and how deleterious they could be. In essence, I refer to it as ‘reform overreach’.

The usual role of judicial officers in such a situation is to duck for cover and stay out of the fray. I have never seen a judicial officer, let alone a head of jurisdiction, leap into defending a program being attacked by the political opposition, for obvious reasons – that is the job of the Attorney General or perhaps some other minister. Judges don’t take sides once matters become partisan.

But alas the Chief Magistrate Judge Michael Allen published a Statement on the Bail Division defending the changes. 

I cannot stress how surprised I was at this development particularly given his history. Judge Allen was a candidate for the ALP in the seat of Calare (which includes the NSW electorate of Bathurst) in 2007. In 2009, during the reign of the ALP in NSW, Michael Allen was appointed as Magistrate. I am not suggesting his appointment was other than meritorious – he had previously been a Legal Aid lawyer, then a barrister in Orange. He was appointed Chief Magistrate by the Minns Government in 2024. 

Of course, standing for political office has never been a bar to judicial appointment, and nor should it be. Lionel Murphy, Sir Garfield Barwick, Frank Walker, John Hatzistergos and Patricia Staunton are all examples. But judicial officers with ALP backgrounds should be particularly careful not to enter political debates against the CLP for obvious reasons.

And what a long statement it is – but there are two crucial points. First, he suggests comparison with the centralised bail system operated by the Supreme Court for bail reviews in NSW. The theme is that if it is good enough for the Supreme Court to only have appearances centralised by AVL (audio-video link) then it is good enough for the Local Court. I think this comparison is utterly misplaced. The Supreme Court does not have Magistrates in every country town in the state. The Supreme Court bail process is technical, delayed, complex and expensive – hardly a favourable comparison.

The second point is the paragraph below, clearly in response to the commentary from me and the Opposition that citification is problematic:

“The Courts in the Bail Division will be divided into regions. Each Magistrate will be appointed to the Bail Division for at least 6 months. Recognising the need to become familiar with local areas, each Magistrate will remain in each region for the duration of their appointment to the Bail Division”.

Well, that is just dandy I thought, and a pretty darn good outcome. Nothing like a bit of flexibility and reorganisation in the face of criticism. I have read this passage a few dozen times, and the meaning is abundantly clear – the bail division magistrate for (say) the North Coast will actually be in the region for the six months duration. Disruptive for the Magistrates themselves no doubt, great for the local motel business, some may well be fly-in-fly-out, but definitively an improvement.

Stunningly, news filtered to me that this was not so. Legal Aid was still saying all matters will be dealt with only in Sydney. Not one bail magistrate will be located in the regions at all. That’s what the rest of the legal profession thought too. I called them out as being wrong. The Chief Magistrate would not be stating that they will be in the regions if they were not. Would he?

And then the practice note for the Bail Division was published, and a few things became clear. 

First, indeed, all the magistrates in the Bail Division will be in Sydney. So, the above paragraph, written in the face of criticism of the citification, is at least confused. Which begs the question – why does it state that at all?

Second, each region will draw from each other – in other words if North Coast member gets swamped, Riverina will draw. Not much local knowledge there.

Third, and this is really alarming, there is a 12-noon cut-off:

“6. Cut Off Time

6.1 The cut off time in the Bail Division is 12 PM. An accused person will be included in the Court bail list for the relevant day if included on the Custody Information Form by a custody manager at a police station, or a CSNSW officer at a nominated CESU site and received by the Court electronically prior to 12 PM.

6.2 Any accused person that fails to make the 12 PM cut off and who remains in custody, will have priority in the next day’s Bail Division list.

6.3 Legal representatives who have obtained instructions on the day cut off is missed shall advise the Registry electronically that the bail application is ready to proceed. These matters will receive priority in the appropriate Court list in the Bail Division the next day.

6.4 Requests for late admission to the Bail Division may be made after 12 PM by Custody Managers or CSNSW officers. Any such application will be determined by the Registrar or the Bail Coordinating Magistrate in Chambers.”

Note the 6.4 request is only by police or Corrective Services. As one young defence practitioner messaged me – WTAF! What if a defence lawyer wants to make a request for late admission?

In my court, and I imagine every Local Court in the country, fresh custody matters were determined right up to the late afternoon – at least 3.30. If someone is arrested at 10 am, the interview and processing can easily take until 1 pm or later, and of course the Local Court should, and until now was available if a defendant is refused bail by police. Access to the court is crucial for obvious reasons – the deprivation of liberty should not be compromised or basically handed over to police discretion on timing. No Local Court in NSW has ever had a 12-noon cut-off to my knowledge. This means many many more people will be spending a night in prison without access to the courts, and this refutes any suggestion that this will increase access to justice in a fair manner. NSW already has more than 4 in 10 of its incarcerated population on remand, and this will only exacerbate the problem. The Chief Magistrate and Attorney General portray their reform as increasing timely determination and as “principled”, but for many thousands each year who will miss the cut-off that is certainly not the case.

Thirdly, what if solicitor X or prosecutor Y takes instructions on bail on a Tuesday, and then the matter is not ready until 12.05 pm and so it is adjourned bail refused to the Wednesday. By then the personnel may well have changed, and seamless transfers cannot be relied on for proper representation. No, what is most likely to happen often is that the new representative has to get further instructions and the merry-go-round continues.

I will leave the last assessment to Karly Warner, CEO of the NSW Aboriginal Legal Service who emailed supporters today:

“This is incredibly distressing for our clients and community as well as for our team, who work tirelessly to keep our people supported and free from prison. This is going to be chaotic, dangerous and unjust. It will be a devastating step backwards for Aboriginal people in regional NSW who may no longer be able to access the ALS in their bail matters, at a time when they are at their most vulnerable.”

Where are we now? The Chief Magistrate has some explaining to do. First, am I right that magistrates will be present in the regions? I certainly hope so, or his statement will have to urgently be amended to reflect reality on the ground. 

Second, what’s with the 12-noon cut-off? How is that any improvement when there is a much later cut-off now? A night in prison is not worth supposed efficiencies in my opinion. 

Third, if regions can and will draw from each other, how much local knowledge will be retained? And fourth, what’s wrong with my suggestion of a trial to see how this is all going with just one court?

Finally, I’d love to know why the Chief Magistrate decided to enter the political debate to disagree with the Opposition. My suggestion (one I may admit to finding somewhat hard myself on the bench), is to leave politics to the politicians, and get the AG to publicly defend the program.

If he really wants to.

I await the next developments with bated breath. I suspect this saga has a way to go.

This article first appeared on Professor David Heilpern’s Substack page.