review of NSW’s new bail legislation was announced by Premier Mike Baird last week out of concerns that a series of recent bail decisions made under the recently enacted Bail Act 2013 do not align with the government’s intention to promote community safety.

Rule of Law Principles behind the new laws

Education resource explaining the new bail laws.

View our education resource explaining the new bail laws. (Click image above)

The Second Reading Speech for the new bail law, then Attorney-General, Greg Smith MLA, said that the new Act was intended to simplify the tests for bail so as to focus on “identification and mitigation of unacceptable risk”. He stated:

“These considerations incorporate matters relevant to the protection of the community and the criminal justice system as well as the rights of the accused person.”

“Simplifying bail laws so that they are easier to understand and apply is one of the key goals of this bill. The Law Reform Commission recommended that the bill be drafted in plain English” … “Simplifying the decision-making process and focusing on risk rather than offence-based presumptions should also achieve the goal of ensuring that bail decisions are more consistent with the terms of the law”

“This is an outcome not always evident in decisions under the existing Act.”

The underlying principles articulated by the then Attorney-General which are enshrined in the new bail laws are important ones for the rule of law and emphasise equality before the law, accessibility and consideration by judicial officers of individual circumstances.

Recent Controversy with the new Bail Laws

However, the application of the new law in a number of recent bail decisions has sparked controversy. They include the case of Steve Fesus who is alleged to have murdered his wife. The bail decision regarding Mr Fesus was originally the subject of a non-publication order, however, following outcry, Justice Michael Adams issued a redacted version of the decision which makes transparent the reasoning with regard to the decision. The release on bail of Mahmoud “Mick” Hawi, following the NSW Court of Criminal Appeal ordering a retrial for the murder of Anthony Zervas during a brawl between members of the Hells Angels and Comanchero motorcycle clubs at Sydney Airport in 2009 has also raised considerable criticism, and comparisons with the previous bail laws which had a presumption against bail for such offences. Legal experts have responded to the review as being hasty, and a knee-jerk reaction to appear tough on crime.

Experts Say Review of New Bail Laws is Too Soon

RoLIA Governing Committee member Nicholas Cowdery AM QC said in an interview with the SMH:

“political grandstanding that denies the opportunity for the act to be given proper effect and for assessment to be made of any changes under the new act in rates of bail refusal, the likelihood of being granted bail and absconding or offending on bail”.

and cited the review as:

“…another instance of a trend in conservative governments – to respond to even isolated and anomalous events by ‘reviewing’ laws or legislating anew. Instead, they should allow the judicial processes to be applied to the law and then have it properly assessed by experts, not former politicians.”

Jane Needham SC, President of the NSW Bar Association also flagged the review as “premature and misconceived”. Julia Quilter, an academic at the University of Wollongong, has also slammed the review of the laws as smacking of a “law and order auction” as quoted in the Age:

“We have a situation where there’s outrage coming from sections of the community in the context of an election, and the Premier and the Attorney-General not wanting to be seen as soft on crime,” Dr Quilter said. … “These laws came into effect on May 20 and they decided to review the Bail Act now? It’s madness.”

Don Weatherburn, Director of the NSW Bureau of Crime Statistics, wrote a piece for the SMH which regards criticisms of the new laws to be baseless and the cases referred to as an unsatisfactory basis for judging the effectiveness of the laws:

It was always possible to find cases where people charged with serious offences were granted bail under the old bail laws. It will always be possible to find such cases under the new bail laws.”

Mr Weatherburn continued:

“If we refuse bail to everyone charged with a serious offence, some innocent people will end up spending time in custody.Others will spend time in custody for an offence that a court eventually decides does not warrant imprisonment.”

RoLIA supports the need for proper consideration of the Bail Act 2013 and endorses its underlying principles. Reactive decision-making in response to perceived public outcry is not a sound basis for hasty changes.