On March 11, Premier Chris Minns announced proposed bail and criminal legal reforms that target vulnerable young people, twisting bail into a punishment that is anathema to bail’s function and human rights.
A NSW government news release praises the proposed changes as action to “make communities safer”. Hampering access to bail is one of many punitive measures touted to protect people. Considering the presumption of innocence, a golden thread underpinning our criminal law, refusing bail is inimical to the function of the ‘justice’ system: it deprives individuals of liberty before they can access their rights to legal representation and a fair trial. Media coverage of high-profile bail cases often conflates guilt and criminal allegations, sparking outrage when people are on temporary release.
Discourse surrounding criminal law often approaches the assessment of new laws with an illusory binary: whether to protect “individual liberties” or “community welfare”. Orthodox criminal law theorists portray harsher sentencing as a measure protecting “community welfare”, arising from the myth that punitive projects such as prisons ‘empty the streets of criminals’ and therefore increase community safety.
This dichotomy topples with the simple realisation that communities are composed of individuals; the two cannot be abstracted from each other. Therefore, depriving people of liberties to save an imagination of a ‘community’ actually does harm. Additionally, the carceral system perpetuates violence and oppression against low socioeconomic and First Nations communities, estranging them from justice: this element of “community welfare” is neglected. The increasing rates of Indigenous deaths in custody and ongoing forced removals destroy Indigenous communities. It is clear our conception of ‘protecting the community’ panders to privileged middle-class neighbourhoods that undeniably subscribe to the myth that prisons lower crime rates and promote safety.
The legislative reform amends the Bail Act 2013 (NSW) to create a new criminal offence. The Bail Act currently provides a rubric authorising both police officers and justices to decide whether to grant or refuse bail. After its implementation in 2013, the Bail Act was praised for its revitilisation of the “presumption of innocence” — this slowly was misinterpreted as being “soft on crime”, leading to a review of the Act in 2014. This developed into amendments that erased the Bail Act’s strongest sections, such as the repeal of s 3(2) which directed bail authorities to “have regard to the presumption of innocence”.
Currently, for all offences, the bail applicant must fulfill the “unacceptable risk” test, where the authorised person judges if they present bail concerns that manifest an “unacceptable risk”. The legislation lists four relevant bail concerns: that the accused would fail to present at proceedings; commit a serious offence; endanger the safety of victims, individuals, or the community; or interfere with witnesses or evidence. Complicating the assessment, it then outlines 21 “matters to be considered”, ranging from the seriousness of the offence to the strength of the prosecution case.
For some serious indictable offences, the bail applicant must also “show cause” that their detention would be unjustified. Considering the retrograde step taken by bail legislation, case law occasionally steps in to decrease disadvantages imposed on vulnerable communities. For example, a legal precedent exists that a cause to grant bail manifests where bail refusal would perpetuate a cycle of disadvantage toward Indigenous communities. However, reliance on case law is not sufficient or safe, considering bail can be granted or refused out of court by police officers who are not trained in law.
These two tests already set hurdles for alleged offenders to access their right to liberty: the proposed amendment compounds this difficulty and targets the most vulnerable.
The proposed amendment imposes an additional test for young people aged 14 to 18 charged with serious break and enter offences or motor vehicle theft offences whilst on bail for the same offences. The wording of the test, that there must be a “high degree of confidence” that the young person will not offend whilst on bail, aims to reduce recidivism. However, the phrasing of “high degree” is likely to be construed by the courts narrowly. This will disproportionately restrict younger people’s right to liberty. Considering the most influential factor in predicting recidivism in younger people is contact with the criminal legal system, holding unsentenced young people in custody endangers them, their families, and their future.
The new offence for “posting and boasting”, which imposes an additional penalty of two years’ imprisonment for people who commit motor vehicle theft or break and enter offences and share material online about their offence, also disproportionately affects young people. The purpose of this increased sentence is unclear — it is unlikely to deter the action, considering young people who engage in this behaviour are already severely neglected by and disengaged with the justice system, and it does not pose any hazards to the community. Those likely to commit this offence are already subject to a lengthy prison sentence — this further sentence is unlikely to have a deterrent effect on that front. Its main impact will be to extend the time young people spend in prison, damaging their physical and emotional wellbeing.
Accompanying the changes, Premier Minns commented, “the reforms we are announcing today look at the big picture at a whole-of-community level, to really intervene and help prevent crime and give young people a chance at life.” Considering over 70% of youth in custody at any given time are unsentenced and waiting for conviction or release, prolonging their time in incarceration, it is hard to believe that these restrictive reforms stepping further and further away from bail law’s intention will support at-risk young people.
In an open letter to the Premier and the Labor Government, over 500 law professors, community legal aid solicitors, and Indigenous Australian rights advocates delineate why these ‘reforms’ are severely harmful and further betray First Nations youth who are subjugated by a system promising ‘justice’ and ‘reconciliation’. The letter urges the Premier to adopt a youth crime prevention plan devised by the Aboriginal Legal Service and pursue therapeutic and non-punitive measures to address the underlying causes of youth offending.
