“Swift and decisive” new bail laws have passed NSW parliament in a “national first”’ move by the government to strengthen its already tough legislation, but the move has copped backlash from the legal profession.
Two amendments to the Bail Act 2013 were raised in both houses this week, blocking some accused criminals from getting bail pending their sentences and ensuring NSW laws remain amongst “the toughest in the country”.
The first is a new requirement for judges to refuse bail after a conviction or a guilty plea prior to sentencing, where the offender will be jailed, unless special or exceptional circumstances can be established.
It is usual practice for courts to remand in custody offenders likely to face a period of full-time incarceration at sentencing.
“Bail exists to keep victims and our community safe before and during a trial, and to protect every person’s right to the presumption of innocence and the general right to be at liberty until they can have their day in court and their matter determined,” NSW Attorney General Mark Speakman said.
“Getting our bail laws right is a delicate balancing exercise.”
However, President of the Law Society of NSW Joanne van der Plaat said insufficient time has been allowed for “thorough and considered” consultation of the amendments.
“Rushed reform can lead to flawed laws. The Law Society’s committees are made up of some of the most experienced practitioners in NSW and able to provide government with expert advice, particularly about unintended consequences,” van der Plaat said.
Further, van der Plaat said the Law Society is “very concerned” about the potential for this reform to significantly increase the remand population, affecting many offenders who may face jail but are not the serious offenders such reform intends to capture.
The ability to divert non-serious offenders into treatment or rehabilitation programs post-conviction could be severely affected. The LSNSW also said the impact the amendment may have on the imprisonment of Indigenous people, who are already over-represented in the justice system, hasn’t been carefully considered.
“We query the extent to which this reform is consistent with national reforms to Close the Gap,” van der Plaat said.
“This proposed reform does not exclude children from its application, and may discourage early guilty pleas, given the length of time that it can take to prepare sentencing submissions and risk assessments. This would only add pressure to a criminal justice system still struggling with COVID-19 related backlogs.”
The Aboriginal Legal Service said it feels “blindsided” by the “rushed bail amendments” and will likely have a disproportionate impact on Aboriginal communities.
“Fairness is supposed to be a cornerstone of the legal system, but here we have the Government pushing through a knee-jerk one-size-fits-all approach that will result in the imprisonment of people the changes are not intended for,” CEO of the Aboriginal Legal Service Karly Warner said.
“It will result in the courts making decisions without the right information. And it will result in courts making decisions that impact disproportionately on Aboriginal men, women and children.
“We have ample evidence and research showing what will work to keep communities strong and safe. The Australian Law Reform Commission’s Pathways to Justice report was tabled in 2018 and contains bail recommendations. There is no excuse for rushing into ill-advised reforms without considering the evidence and pre-existing recommendations.”
The second amendment includes minimum standards for electronic monitoring as a bail condition. Accused drug dealer Mostafa Baluch sparked a nationwide manhunt after he allegedly cut off his ankle bracelet before caught in the back of a truck trying to cross the Queensland border in November 2021.