The Bail Act 2013 commenced in May 2014, replacing the old Bail Act 1978 which had been amended over 80 times and was widely criticised as unfair and unworkable.
If you’ve been following our blogs, you’ll be aware of the recent introduction of “show cause” provisions for certain offences and the abandonment of the two-step risk assessment approach that was integral to the new Act.
Those amendments have been described as a “knee-jerk reaction” to a media-fuelled public backlash against the new Act, with many being persuaded by radio-show hosts and newspaper reports into believing that it had become easy for “dangerous criminals” to get bail.
As with any new legislation, the courts have been endowed with the burdensome task of interpreting the changes, and the Supreme Court in M v R  has now provided some welcomed guidance on how the most recent amendments should be applied.
How has the Bail Act changed?
In order to grasp the impact of the decision in M v R, it is necessary to understand the effect of the most recent amendments to the new Bail Act 2013.
Before the amendments
The new Bail Act initially proposed a two-step test which bail authorities had to consider before deciding whether or not to grant bail. A bail authority is a person who has the power to determine bail – such as a magistrate, judge or police officer.
The first step was to determine whether the applicant posed an “unacceptable risk” to the community. Bail would be granted if the applicant did not pose an unacceptable risk.
If an unacceptable risk was identified, the bail authority would then turn to the second step of the test, which was whether or not the risk could be mitigated (overcome) by the imposition of bail conditions.
Bail conditions are simply requirements that the applicant (ie the person in custody) must abide by if granted bail – for example, to report to police on certain days, to live at a particular address, to deposit a security (eg money), to keep to a curfew etc.
If the unacceptable risk could be mitigated by specific conditions, bail would be granted on those conditions. If not, bail would be refused.
After the amendments
A series of amendments which became law in early February 2015 have changed the test that must be applied when determining bail.
The new test is essentially a one-step approach that requires a bail authority to assess any unacceptable risks together with any possible bail conditions that may mitigate that risk at the same time. The amendments also introduced requirement that, for certain offences, the applicant must “show cause” as to why their detention is not justified before they can be granted bail. “Show cause” offences include serious child sex offences, murder and manslaughter.
Think all of this is a little confusing? You’re not alone; and although some are happy about making bail harder to achieve, the Act provides little guidance about how applicants are to “show cause.”
In practice, this has caused different magistrates and judges to make conflicting decisions about how the show cause provision is to be applied, including how the threshold for showing cause is to be reached.
M v R: Interpreting the ‘show cause’ provision
In M v R, Supreme Court Justice McCallum considered the “show cause” provision and provided some guidance regarding its application.
The crux of the judgment is that bail applicants who are subject to the show cause provision do not have to satisfy a higher threshold than that of the “unacceptable risk” test. McCallum found that where no unacceptable risk is identified, it should follow that the “show cause” requirement is also satisfied, and an applicant should be granted bail.
And importantly, Justice McCallum rejected the proposition that the recent amendments mean that those charged with “show cause” offences should ordinarily be refused bail. That finding flies-in-the-face of submissions regularly made in court by police prosecutors and DPP solicitors to the effect that the new provisions mean that bail should only be granted on rare occasions to those affected by the show cause provisions. Rather, His Honour found that the court should focus upon the facts and circumstances of the offence, along with any relevant considerations, when determining whether the show cause requirement is overcome.
The judgment has been welcomed by criminal defence lawyers as an authoritative determination of how tests under the new Bail Act should be applied. In essence, the judgment makes it clear that applicants charged with “show cause” offences do not have to satisfy a ridiculously high threshold in order to get bail – which, at long last, is a small victory for our ever-eroding presumption of innocence.