Higher Bail Threshold and Monitoring Devices Proposed for Alleged Domestic Violence Offending

The New South Wales government’s latest response to the epidemic of domestic violence across the state is to make it harder for those charged with domestic violence offences to achieve bail and to require monitoring devices to be worn by those who make a successful bail application.

While the move has been lauded by the mainstream media and welcomed by a number of domestic violence support organisations, critics see the proposal as a knee-jerk reaction that subverts the presumption of innocence and would likely be ineffective as it not only ignores the fundamental social causes of such offending conduct, but could further antagonise, stigmatise and alienate accused persons rather than motivate change, not to mention lead to falsely accused persons having their liberty taken away and lives turned upside down.

Higher Bail Threshold

Under the proposed changes, which are contained in the Bail and Other Legislative Amendment (Domestic Violence) Bill 2024, ‘serious domestic violence offences’ as well as the offence of ‘coercive control’ would become what are known as ‘show cause’ offences for the purposes of bail applications.

For these offences, the defence is required to ‘show cause’ as to why the defendant’s detention is unjustified, before the bail application is able to proceed to second stage of the process: the assessment of whether there is an ‘unacceptable risk’ that if the defendant were to be released on bail, he or she would fail to appear in court, commit a serious offence, endanger others or interfere with evidence or witnesses.

A bail application must be refused if the defendant is unable to show cause or is considered to pose an unacceptable risk that cannot be overcome by bail conditions.

The proposed definition of serious domestic violence offence includes kidnapping, strangulation with intent and certain sexual offences, and the proposal also extends to the forthcoming offence of coercive control, which comes into effect on 1 July 2024.

The show cause test would apply to these offences regardless of whether the defendant has a history of violence, or any criminal history at all.

The government is further proposing changes that would explicitly require bail decision-makers to consider a range of factors for all suspected domestic violence-related offences, including abusive or violent behaviour, stalking, coercion as well as the views of complainants and their family members – which is not currently the case.

The reforms are likely to lead to a higher percentage of defendants being locked up pending the finalisation of their cases, which could mean months or even years, whether they are ultimately proven to be guilty or not.

Montoring Devices

The government is further proposing to make it mandatory for those charged with serious domestic violence who are released on bail to wear electronic monitoring devices, sometimes referred to as ‘ankle bracelets’, which are equipped with GPS tracking technology that can provide real-time information on a person’s whereabouts, enabling their movements to be monitored to ensure compliance with geographical bail conditions.

Quoting from a recent joint press release by Premier Minns, Attorney General Michael Daily and the Minister for the Prevention of Domestic Violence and Sexual Assault Jodie Harrison, ‘[t]his means that this cohort [of suspected offenders] is either held in remand or electronically monitored’. 

The judgmental rhetoric is concerning in the context of the presumption of innocence; in other words, given the fact the people these politicians are calling a ‘cohort’ have not been found guilty of any offence, and in a democratic society are meant to be presumed innocent until and unless they are proven to be guilty in a court of law.

The round-the-clock monitoring of movement raises additional concerns, especially given the fact these defendants have not been convicted of any crime.

Further concerns 

In addition to concerns regarding the subversion of the presumption of innocence, curtailing of the right to privacy and potential antagonisation and stigmatisation of those who are accused of domestic violence offences, the proposed reforms are likely to result in further pressure on our already overcrowded prison system by increasing the number of people held behind bars on remand pending the finalisation of their cases.

In terms of efficacy, there is a strong argument the proposed reforms represent a populist reaction to a far broader and deeply embedded social issue, and will do little if anything to address the issue of domestic violence offending on a societal level.

It is suggested that instead of summarily discarding the fundamental civil liberties of a ‘cohort’ of suspects, our politicians should instead be focusing on addressing the implementing initiatives which encourage a cultural shift in the way violence is perceived in our society; one which through education, support services for both complainants and suspects makes it clear that violence within family setting is not acceptable and services exist for those at risk of both offending and being victimised.

Australia has come some way over the past several decades in the way we perceive previously-gendered roles, and a similar cultural shift is needed if we are to address the insidious and destructive problem of domestic violence that sadly continues to pervade our society.