The current new bail laws make two fundamental changes to the...

The current new bail laws make two fundamental changes to the Bail Act 2013 (NSW). First, they require assessment of alleged offenders charged with certain serious indictable offences as to whether they are an ‘unacceptable risk’, but now taking into account conditions of bail.1 Second such alleged offenders must now show cause as to why they should be granted bail, shifting the onus onto the offender to prove they should be let out pending trial.2

Subsequently, a joint Commonwealth-State review of the Lindt Café siege has been released. While delivering the review on Sunday, Premier, Mike Baird acknowledged bail laws have been made tougher recently. However he added, “I have a view it should actually go further”.3 “If someone is identified as a terror suspect and if they are intercepted in the NSW judicial system and they are charged with a serious offence, I have a view they should not be provided bail in that circumstance.”4 Deputy Opposition leader, Linda Burney, announced that Labor would lend bipartisan support to the change.5

However, legal experts have warned judicial discretion is at risk, and the proposed laws ignore the fact the current new bail laws already provide for a terrorist risk to be considered a presumptive ground for refusing bail. For example, NSW Bar Association President, Jane Needham SC, has made known the Association’s deep concerns about compulsory refusal of bail for any category of offender.6

There is a community drive, following the Lindt Café incident, to make it harder for serious violent offenders to get bail. However, the current system of presumption against bail is preferable to blanket refusal of bail by the Courts in such cases. This approach balances the need for protection of the community against the judicial independence and case-by-case application of common sense, which underlies our criminal justice system.

Footnotes

1. Bail Amendment Act 2014 (NSW), s 16A.
2. Bail Amendment Act 2014 (NSW), s 16B.
3. ‘Baird’s Proposal to Tighten Bail Laws a Knee-Jerk Reaction, Say Legal Experts’, The Sydney Morning Herald (Online), 22 February 2015 <http://www.smh.com.au/national/bair...ction-say-legal-experts-20150222-13lee3.html>.
4. Ibid.
5. Ibid.
6. Ibid.