Quest for the Holy Bail 2: Bail Harder

Sam Murray’s concern over bail changes don’t necessarily imply his criminality, but…

“The law and order auction” is a particularly apt phrase that refers to the tendency of both major parties in NSW to ‘auction off’ the rights of criminally accused persons for political point scoring, no matter how antithetical it may be to good public policy (see: right to silence; anti-bikie laws, the lockouts etc.) The most recent incarnation of this political penchant is the new (new) bail laws that have been recently passed by the State government.

After a nearly two year-long consultation process, this year the NSW Government reformed the Bail Act 1978 (NSW). They replaced the confusing presumptions and counter-presumptions of the previous Act with a simple two-step test: bail could only be denied if someone was both an ‘unacceptable risk’ (of absconding, committing more crimes, evidence tampering etc.), and if that risk could not be mitigated by measures such as confiscation of passport or daily reporting requirements. The only “problem” with these reforms was that, while many people ended up getting classified as ‘unacceptable risks’, most of the time courts found preventative measures would adequately mitigate the risks, resulting in most applicants getting bail. Suddenly, a cohort of bikies and alleged murderers (among others, of course) were getting bail. Cue The Daily Telegraph and talk-back radio demanding a radical change

And so the government complied, enacting a formal review of the new laws. In a stroke of political genius, they appointed the former Labor NSW Attorney-General, the Hon. John Hatzistergos to head up the review, ensuring they would both get hardline recommendations (Hatzistergos was a particularly law-and-order-centric politician) and Labor’s support for any reforms. In an entirely unsurprising turn of events, the recommendations came back within weeks and quickly attracted bipartisan support. They have since been expeditiously passed into law by both Houses of Parliament.

The Bail Amendment Act 2014 cut the aforementioned test in half. Instead of courts determining whether or not someone was an ‘unacceptable risk’ and then determining whether that risk could be mitigated, anyone found to be ‘unacceptable risk’ is now simply denied bail. Given that under the previous system most applicants were found to be ‘unacceptable risks’, this means a lot of bail will now be denied. Even more problematic is the addition of an entirely new test, which states that if you have been charged with certain offences such as serious drug, firearm and personal violence offences, the burden is on you to “show cause why [your] detention is not justified”. This reverses one of the longest standard legal principles in the criminal law: the presumption of liberty being given to those charged with crimes. If you are charged with, for example, possession of a commercial quantity of cannabis, and are unable to ‘justify’ your non-detention, you’re not getting bail no matter how low a risk the court determines you to be.

But, hey: in a state where it’s okay to lose freedom of association, your right to silence, and your ability to have a drink at 3.01 in the morning, what does it matter if we throw another ancient legal right on the funeral pyre?