Is the Tightening of Bail Laws in NSW making the Magistrate’s Role Redundant?

The flipping and flopping of politicians when it comes to bail laws is enough to make you mad.

Just keeping abreast of the likely changes in order to decide whether and, if so, when to make a bail application (now called a ‘release application’) is one of many strategic decisions made by criminal lawyers in any particular case these days.

One experienced and highly-respected Magistrate, Andrew George, has had enough and recently condemned a prominent AM radio host’s tirade against the perceived inadequacy of bail laws when it comes to keeping ‘dangerous criminals’ behind bars.

Mr George dubbed the newly-amended Act as the ‘Ray Hadley Bail Act’ and said that the changes may even put him out of a job.

He has expressed the view that the changes will fetter judicial discretion to the point where very few applicants who appear before Magistrates will be allowed bail.

The consequences of the changes, he fears, include the redundancy of Magistrates when it comes to making bail decisions, and to soaring prison populations.

Earlier this year, the prison population in NSW reached it’s highest ever level.

According to the Bureau of Crime Statistics and Research (BOSCAR), the numbers dropped after the introduction of the new Bail Act.

As there was no corresponding decrease in arrest rates or crime trends, BOSCAR concluded that the decrease was likely due to a drop in remand rates.

But the prison population may once again be on the rise, with the new bail amendments in full swing.

A major objection to the amendments is that they are effectively bringing-back the unworkable ‘presumptions against bail’ that were a primary reason for getting-rid of the old bail act.

Like the old Act, people charged with serious offences will now once again have to prove that they should be granted bail.

This includes persons accused of:

• Committing crimes carrying a life sentence;
• Committing offences while on bail or parole;
• Acts of personal violence;
• Sexual assault of a child;
• Use of a firearm;
• Large scale drug supply; or
• Serious violence

Defendants in those categories must now demonstrate why they should be granted bail.

This is a departure from the whole idea behind the new bail act – that people should only be refused bail if they pose an ‘unacceptable risk’ to the community that cannot be overcome by bail conditions.

But not everyone agrees with Magistrate George.

George Brandis states that community safety is at the forefront of the new bail amendments.

And when the Telegraph published Magistrate George’s comments, it’s readers seemed less than impressed; overwhelmingly criticising the highly-regarded Magistrate and praising the changes.

‘Lock’em up and throw away the key’ is the popular catchcry!

Some even made fun of the Magistrate’s comments, going so far as to suggest that they wouldn’t mind if Magistrate George was made redundant – permanently.

There’s been so much talk about bail this year that one would be forgiven for being lost.

Well here is a quick timeline of main changes to bail laws in NSW over the past 7 months:

Timeline of NSW bail laws this year:

Pre- May 20, 2014 – Old bail act in force

The Bail Act 1978 divided offences into four main categories:

(1) those that come with a a ‘right to bail’,

(2) those that came with a presumption in favour of bail; where they are to be granted bail unless the prosecution proves they should not be,

(3) those with no presumption; called a “neutral presumption”, and

(4) those with a presumption against bail; where they are not to be granted bail unless the applicant proves otherwise.

May 20 – New bail act arrives

The Bail Act 2013 take effects.

In a nutshell, the new act says that:

(a) bail should be granted without conditions if the person who is charged does not pose an ‘unacceptable risk’ to the community,

(b) bail should be granted with appropriate conditions if any ‘unacceptable risk’ can be overcome by bail conditions, and

(c) bail should be refused if the ‘unacceptable risk’ cannot be overcome by bail conditions.

It is less-complex and more workable than the previous act.

June – Calls for the new bail act to be amended

The media highlights isolated cases where alleged ‘violent offenders’ are released on strict conditional bail including Mick Hawi, the former boss of the Comanchero bikie gang.

This leads to a community backlash and calls for tougher bail laws.

Politicians follow suit and the Act is quickly reviewed although it has only been in place for a matter of weeks.

A range of amendments are debated over the next 6 weeks or so.

August 5 – the Bail Amendment Bill is introduced into the NSW lower house

This Bill proposes to retain the ‘unacceptable risk’ test but to insert a ‘show cause’ element, meaning that those accused of committing certain offences must be refused bail unless they can prove that they should get bail.

September 25 – Amendments come into effect

The Bill is assented to and becomes law.
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One can only speculate as to whether further changes will come into effect in the future.

The way we’re headed, it looks like the old bail act is returning – just in a different form.