Bail overhaul revealed
November 29, 2012
(Translation of this article appears in Arabic section)
THE state government has taken a step towards simplifying bail laws - but it has stopped short of radical changes recommended by the Law Reform Commission.
The Attorney-General, Greg Smith, said the new model would give every accused a chance to get bail by introducing a case-by-case risk assessment model.
But Mr Smith said accused criminals who posed a serious risk to community safety or were likely to commit crimes ''will not get bail under this model''.
''Under the current law, decisions about bail are made based on the offence of a person has been charged with - not the risk they pose to the community. Our reforms will ensure the risk to the community is the first thing taken into account,'' he said.
At the moment, every charge carries an automatic bail presumption, either in favour, against or neutral.
The Law Reform Commission called for this system to be scrapped, replaced by a universal presumption in favour of bail.
The commission also recommended there should be no restrictions on repeat applications by adults and young people, as is the case now.
Mr Smith did not remove this section of the Act, but said juveniles would be allowed a second chance for bail.
This restriction has been blamed for swelling the number of young people and adults on remand in prison, despite not being convicted and sentenced.
The vice president of the NSW Bar Association, Philip Boulten, SC, said it was unfortunate the government had decided not to apply a universal presumption in favour of bail.
''It's not an adoption of the Law Reform Commission model, which the Bar would have preferred, but it's better than the way it is at the moment.
''They are liberalising the bail laws, it seems, but they don't want to look like they're doing it.''
Under the changes, police and courts would consider whether a person posed an unacceptable risk of endangering community safety, committing a serious offence, interfering with witnesses or absconding.
The Law Society of NSW president, Justin Dowd, said the simplification of the system meant it would be much easier for the public to understand.
Eamon Waterford, of the Youth Action and Policy Association, said the government had ''missed [an] opportunity''.
''Overwhelmingly, all of the experts, all of the research, says that the limits around bail applications should be scrapped completely.''
The chief legal officer at the Aboriginal Legal Service, John McKenzie, said he was disappointed adults would not be entitled to multiple bail applications, but largely pleased with the model.
The secretary for the NSW Council for Civil Liberties, Stephen Blanks, said the reforms were a ''step in the right direction'', but the prohibition on second and subsequent bail applications ''is a source of real injustice''.'
Max Taylor, who heads the Bail Reform Alliance, said he was unhappy about the removal of the presumption in favour of bail and the failure to address the high number of adults on remand in prisons.
''It means the onus on the prosecution vanishes because there is no presumption in favour of bail,'' he said.
The NSW Greens MP David Shoebridge said the government's failure to remove s22A of the Bail Act, which limits most adults to only one bail application, would result in too many people continuing to be held on remand awaiting trial.
''The O'Farrell government fails to even address the key issue of reducing the swelling population of prisoners held on remand,'' he said.
''Just today the Auditor-General has released a report condemning this and previous governments for overseeing a tripling of the people held on remand.''
Scott Weber, president of the NSW Police Association, welcomed the new model, saying it was favoured by police.