Lawyers Slam Further Tightening of NSW Bail Laws

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By Paul Gregoire and Ugur Nedim

The NSW government rushed through new bail laws last week, with many including criminal lawyers asserting that the amendments are ill-considered and could represent an obstacle to certain defendants being able to undertake important programs and demonstrate rehabilitation in the lead-up to the finalisation of their cases.

The laws, tabled on Tuesday and passed through both houses by Thursday, were sparked by recent controversial bail decisions.

In the wake of his tasking a bail monitoring working group last November, NSW attorney general Mark Speakman drafted the Bail Amendment Bill 2022, which makes two changes to the Bail Act 2013 (NSW), with eyebrows being raised over limits placed on bail for those convicted prior to sentencing.

Refusing bail results in the remanding of people accussed of crimes but yet to be convicted, as well as those found guilty of an offence who are awaiting sentencing. The problematic aspect to this practice is that the innocent and the guilty who aren’t ultimately sentenced are spending time in gaol.

There has been a steep increase in the number of Australians being remanded over the last two decades.

Of the 12,352 adult inmates in the NSW prison system in March this year, 4,658, or 38 percent, of them were on remand. Whereas, in June 2004, there was a total of 4,935 remandees in all prisons across the country.

NSW premier Dominic Perrottet announced the changes a week prior to their introduction, citing two controversial bail decisions involving convicted paedophiles as warranting the reforms.

But critics assert the bail refusal law is likely to result in the remand population continuing its rapid rise.

Bail refusal on conviction

The amendment being questioned involves the insertion of section 22B into the Bail Act 2013, which stipulates that an offender who has been convicted of a crime will not be released on bail prior to sentencing if it is established that they will be sentenced to full-time prison.

This bail refusal law applies to both when the accussed makes a release bail application on conviction, as well as when the prosecution makes a detention application regarding the offender, “unless it is established that special or exceptional circumstances exist that justify the decision”.

The section also stipulates that a conviction includes when an accused pleads guilty, along with court determination of guilt.

NSW housing minister Melinda Pavey read Speakman’s second reading speech on the bill in the lower house. It outlines that those who have been found guilty and are expected to be sentenced should not “be permitted to walk free in our community while they are waiting to be sentenced.”

The state’s chief lawmaker further explains that currently under section 18 of the Bail Act, after an accussed has been convicted of an offence, a bail authority must take into account whether they’re likely to receive a custodial sentence when deliberating on whether to grant bail prior to sentencing.

Yet, the new law takes this a step further so that the provision of post-conviction bail prior to sentencing is completely ruled out for those likely to be sent away. Speakman adds this won’t apply to those who may receive a lesser sentence, such as an intensive correction order.

No reflection on consequences

In a statement released the day prior to the law being passed completely, the Law Society of NSW pointed out that the section 18 requirement means that the courts are already taking the likelihood of a custodial sentence into account when approaching the question of bail.

According to the Law Society, whilst the government has presented the reform as being “swift and decisive”, this actually reflects a lack of consultation with law experts and hence, there hasn’t been thorough consideration of any “unintended consequences”.

“The Law Society is very concerned about the potential for this reform to significantly increase the remand population, affecting many offenders who may well face jail,” reads the statement, “but are not the serious offenders the reform is intended to capture.”

Further, the determination of a likelihood of imprisonment on conviction pre-empts sentencing submissions and risk assessments. It applies to children, as well as adults, and the lawyer’s representative body warns it could discourage early guilty pleas.

A nationwide first

The second amendment involves inserting new section 30A into the Act, which stipulates that if it is a condition that an accussed person be subject to electronic monitoring whilst on bail, the device should be “of a standard that at least meets any minimum standards prescribed in the regulations.”

This law is in response to the case of alleged drug dealer Mostafa Baluch having cut off his own electronic monitoring ankle bracelet whilst awaiting trial on bail last year. Baluch was later caught hiding in the back of a truck about to cross the border into Queensland last November.

Speakman advises that until now there have been no minimum standards applying to electronic monitoring devices, and courts are currently deliberating upon the evidence submitted by the providers of the equipment as to its effectiveness.

In an Australian first, Speakman underscores, minimum standards on electronic monitoring devices will be inserted into the Bail Regulation 2021 (NSW).

“A blunt tool”

The Aboriginal Legal Services NSW/ACT also expressed concerns about the bail refusal amendment being rushed through parliament in a 22 June statement, in which it labelled the amendment bill “short-sighted, reactive” and likely to disproportionately impact First Nations adults and children.

Chief executive Karly Warner stressed that she’s unclear as to how a determination that an individual will be sentenced to full-time prison prior to the sentencing process having taken place will be made.

And she adds that the law will likely hinder early guilty pleas due to resulting long remand periods.

Warner further underscored that while the government professes it’s working in partnership with Closing the Gap, this is not reflected in the passing of the bail refusal on conviction law.

Targets 10 through to 12 of the National Agreement on Closing the Gap currently call for the overrepresentation of First Nations adults, young people and children to be rectified, and this includes addressing the reasons why Aboriginal and Torres Strait Islander people are being remanded.

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