Has the NSW Government Lost the Plot on Bail?

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Prisoner holding onto barbed wire fence

The NSW Bail Amendment Bill 2014 appears to showcase the sort of messy governmental decision-making that comes from populist knee-jerk reactions.

Within just weeks of the existing Bail Act 2013 coming into operation on May 20 this year, the Baird government’s drafters have now cobbled together a bundle of strange and disturbing changes – ostensibly designed to enhance community safety.

With tabloid sensationalism obviously stoking a few smouldering coals of prejudice, it’s troubling to see the government taking the low road on the clamouring of a noisy few.

Blink-and-you’ll-miss-it review

In what appears to be a cynical sweetener aimed at bipartisan parliamentary support, former Labor Attorney-General John Hatzistergos was given the task of ‘reviewing’ the existing Act – which had in fact only been in operation for a matter of weeks.

With little time and even less applicable case law available, findings were strung together and speedily sent across to State Parliament.

Following immediate and wholesale acceptance of the Hatzistergos review findings by the NSW Government, the Bail Amendment Bill 2014 was quickly introduced to the NSW lower house on August 5.

Too important to rush

Going back a bit, the introduction of the Bail Act 2013 had provided a glimmer of hope to justice system stakeholders that fairness might in fact prevail in bail proceedings.

The review that preceded the introduction of the final 2013 Act involved exhaustive research, plus countless consultations between reviewers and those actually working within the arena of bail proceedings.

We knew that the previous patchwork of bail provisions had certainly led to some fairly harrowing decisions for those being held prior to trial, many without basis.

Overall, the work that went into the current Act was at least reflective of a desire to – as far as possible – get it right.

Risk between loss of freedom and community safety is certainly a tricky balance to strike; but with a good basic structure, at least justice has a chance.

If it ‘ain’t broke’…

Yet of course if a piece of legislation is in danger of actually making sense to users, well – what else should a government do, but add some complications!?

And so began the process of fiddling once more with the Act, via the 2014 Amendment Bill recently tabled in parliament.

In his second reading speech, Minister Brad Hazzard noted that the mooted amendments will ‘strengthen’ the current Act.

Yet to strengthen something – surely that means doing more than just tacking on an extra part without first checking the base design?

But that’s what we have here.

The concept of ‘unacceptable risk’ is now messily conjoined with an extra tranche of onerous, offence-centred stipulations.

Here we see the new and unwieldy ‘show cause’ provisions, which stipulate mandatory bail refusal for so-named ‘show cause offences’, unless the accused shows cause that their detention is not justified.

Where’s the presumption?

What the minister celebrates in his speech as an ‘important change’ in fact reeks fairly awfully of the complete loss of the presumption of innocence.

Accused of a show cause offence, the individual now has to scramble their way out of the pit of a s16A pre-ordained bail refusal decision, by taking on the onus and all of its subtleties single-handedly.

But that’s not all: even if that show cause wall has been scaled, there is always the chance of being found to be an ‘unsatisfactory risk’.

It’s like being pushed back into the pit and told to start climbing all over again.

Oh, and this time, it will be necessary to weave your thoughts on potential bail conditions into your unacceptable risk submissions before you can even catch your breath.

And don’t miss a step, or you’ll be back to the bottom again…

Looking for fairness

In this scenario of applying for bail under the amendments, the prosecution could be forgiven for bringing along their i-devices and catching up on social media to fill the time.

All while a bewildered and under-resourced accused desperately tries to show why bail should not be refused and why liberty should be preserved where possible.

Mr Hazzard pipes up that QLD and Victoria do some things in their states that look a bit like this. Hmmm, ok – but if our esteemed neighbours jumped off a bridge, would we automatically follow?

Much to lose

The results of this shifting onus and veritable removal of the presumption of innocence are fairly predictable.

Those formerly accused who are later found to be innocent will certainly have spent considerable time incarcerated for no reason.

And remember that incarceration can – in and of itself – lead to later adoption of criminal behaviours by formerly innocent citizens.

A diabolical spiral is almost certainly set in motion.

In Rousseau’s words:

“…we may acquire liberty but it is never recovered if it is once lost.”

Even playing the pollies’ game of talking loud on solving the ‘prison problem’, it’s hard to see how the guaranteed bulging of the prison system as a result of bail refusals helps anyone, anywhere across our community.

An unbalanced approach

Yet Minister Hazzard certainly tries to pump up the positives in these rushed and unfair changes that have been introduced in the NSW Parliament.

Indeed, in his second reading speech he concludes by speaking of the amendments as supposedly “striking the right balance in protecting the community and the integrity of the justice system.”

Perhaps it is just a symptom of all this knee-jerk rushing around that has gone on in the last few weeks – but where in this supposed ‘balance’ do we see how the rights of the accused will be in any way protected?

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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