Quest for the Holy Bail

Our illustrious state government has butchered and re-butchered the Bail Act, writes Sam Murray.

If there was ever an incident that demonstrated the total incapability of state governments to manage criminal law reform, it can’t be more tragically hilarious or comically farcical as the recent changes to NSW bail laws.

How the Bail Act 1978 (NSW) previously worked earned it the title of The Most Poorly Drafted Piece of Legislation in the Country. When someone is charged with a crime, they can be kept in custody until their trial if it’s believed that there is a risk of them absconding, interfering with evidence and witnesses, or committing more crimes. However, if the police do decide to keep them in custody, the charged individual can apply for bail. The previous act began with the well-intentioned presumption in favour of bail for all applicants. However, years of self-interested politicians and over 80 amendments eroded this presumption for all sorts of media-sensitive crimes; inserting counter-presumptions, exceptions to presumptions, reversal of presumptions and so on. The Bail Act 1978 had been consistently attacked for being a confusing, patchwork legislation in dire need of reform.

So the NSW Liberal government – not content with qualifying the right to silence, strengthening the illiberal anti-consorting laws and creating totally arbitrary mandatory minimums for one-punch assaults – decided to replace the Act. They removed all the presumptions and counter-presumptions and replaced it with a single two-step test: bail can only be denied if someone is both an ‘unacceptable risk’ (of absconding, committing more crimes, evidence tampering and so on) under section 17, and if that risk cannot be mitigated by measures such as confiscation of passport, daily reporting requirements, sureties for good behaviour and so on (section 20).

Simple, right? Well, the only problem was that ‘unacceptable risk’ was never defined in the legislation and has never been used as a legal test for anything ever. So when the legislation was passed a year ago, nobody had any idea whether it would result in everybody getting bail, nobody getting bail, or anything
in between.

As it turned out, in the decisions that have occurred since the new Bail Act came into effect, many people are being classed as ‘unacceptable risks’, but almost everyone is getting bail anyway after being saddled with massive section 20 restrictions that satisfactorily mitigate the risk. So now, despite the Russian Roulette-esque way it was created, the legislation has substantially reduced the state’s remand population whilst ensuring that there are enough restrictions to mitigate the risks of giving bail.

Of course, that’s not good enough for the tabloid press, who criticised a few high-profile criminals getting bail under the new system, such as bikie Mahmoud Hawi and alleged wife-killer Steven Frank Fesus. And, of course, because people have a tendency to misunderstand the legal system, they don’t know that withholding bail is not about punishment or judgment but rather just about ensuring compliance with arrest orders.

So a month after its implementation, the NSW Government announced a review of the Bail Act. To clarify: after a year-long review of the old bail laws, ten months of drafting, a full year of the bail laws having been passed but not implemented, and only five weeks of implementation, the NSW Government is reviewing the laws because of a few anecdotal failings picked up by The Daily Telegraph. God knows what they’ll do next when the review comes back to them.