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  • The NSW Law Reform Commission has reviewed and reported on bail reform
  • The recommendations form the basis of many of the changes brought about by the new Bail Act 2013

Following the election of March 2011 the new government gave terms of reference to the NSW Law Reform Commission (LRC) to review and report on bail reform. The Report 133 was not fully adopted, although its recommendations form the basis of many of the changes brought about by the new Bail Act2013 (2013 Act). This paper seeks to highlight the changes.

As a starting point, s3 of the 2013 Act outlines the purposes of bail but, critically, requires that in that making a bail decision regard is to be had “to the presumption of innocence and the general right to be at liberty”. Section 7 defines bail as authority to be at liberty for an offence. Subject to the circumstances in ss (2), s14 limits the entitlement to be at liberty to where the person signs a bail acknowledgement and meets all pre-release requirements such as the surrendering of a passport.

Bail authority is defined in as a police officer, an authorised justice or a court (s4), with their powers set out in Division 1-5 of Part 5. These provisions remove the internal review power by a more senior police officer (s43 A (3) Bail Act 1978). Under s8(1), bail decisions can be made to release a person without bail, dispense with bail, grant bail with or without conditions or refuse bail. Bail decisions can also be made for persons who are not accused of an offence in circumstances set out in 8(3) and Schedule 1.

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