SUMMARY

Bail enables a person in custody who is charged with a criminal offence to be released from custody on the condition that he or she undertakes to appear in court and observe any specified conditions. Bail laws attempt to strike the right balance between not infringing upon the liberty of an accused person who is entitled to the presumption of innocence, and ensuring that an accused person will attend court and will not interfere with witnesses or commit other offences. This paper updates a 2002 Briefing Paper on Bail Law and Practice.

Changes to bail laws: 2003-2010
The changes in this period included the introduction of:

• A very stringent test for granting bail to persons accused of murder and persons who are ‘repeat serious personal violence offenders’;
• A presumption against bail for ‘repeat property offenders’;
• A presumption against bail for other offences including certain firearms offences, drug offences, terrorism offences and riot offences.

The NSW Government justified these changes primarily on the basis that they provide greater protection to the community against the risk that persons will commit offences while awaiting trial. In 2007, the Government also introduced new limits on the number of bail applications that can be made to a court. These new limits aimed to prevent ‘magistrate shopping’ and repeated bail applications ‘that serve only to inflict further anguish upon victims’. [4]

Recent criticism of bail laws
A newly formed lobby group known as the Bail Reform Alliance (made up of a number of organisations including the NSW Law Society) has criticised changes over the last two decades, which have removed the presumption in favour of bail for a large number of offences. The Alliance argues that the changes have largely been ad hoc responses to particular crime incidents, and that a good case has not been made out for reforms that have undermined an accused person’s right to the presumption of innocence. A group of non-government organisations has also recently expressed concerns over the increasing number of young people on remand and it has made recommendations to address this. It has been reported that, while the Government is proposing to make ‘operational’ changes to the Bail Act, it is not planning to make any major policy changes at this time. [5]

Reports on bail and young people
Several inquiries have examined issues arising in relation to young people and bail. These include the NSW Law Reform Commission’s 2005 report on Young Offenders, and, more recently, the Strategic Review of Juvenile Justice by Noetic Solutions Pty Limited. These reviews have made recommendations directed at making the Bail Act more appropriate for young people, ensuring that inappropriate bail conditions are not imposed on young people, and addressing the lack of suitable bail accommodation for young people. In relation to bail accommodation, recent NSW Government initiatives include developing a Bail Assistance Line, and running a pilot program at Parramatta Children’s Court. [6]

Trends in bail outcomes

• Between 1993 and 1997, the proportion of defendants who were refused bail doubled in both Local Courts and Higher Courts;
• In 2008, about 9 percent of defendants who were refused bail in Local Courts and Higher Courts were not found guilty of an offence.
• A 1995-2000 study found that only 51 percent of Local Court defendants who were refused bail received a custodial sentence (in the Higher Courts, 81 percent of defendants refused bail received a custodial sentence).
• In 2008/09 only 22 percent of young people with a remand episode received a control order within 12 months;
• Between 2001 and 2008, the proportion of defendants on bail who failed to appear in the Local court declined from 19.0 percent to 8.7 percent;
• There are no available statistics in NSW on the number of persons who commit an offence while on bail. [7]

Trends in the remand population

• Between 1993 and 2009, the number of prisoners on remand has more than tripled and the proportion of all prisoners who are on remand has more than doubled (in 2009, the proportion was 23 percent);
• Of all Australian jurisdictions, NSW has the third highest proportion of prisoners who are on remand and the third highest remand rate per 100,000 of the State adult population;
• Since 2004/05, the average daily number of young people on remand has increased by 82 percent (from 125 to 227);
• A BOCSAR study found that two factors contributing to the increase in the number of young people on remand between 2007 and 2008 were an increase in police activity in relation to breach of bail, and the 2007 changes which limited the number of bail applications that can be made;
• A recent BOCSAR study found no significant relationship between the growth in the juvenile remand population and the fall in property crime (no studies have been conducted on whether there is a relationship between the growth of the adult remand population and crime rates). [8]

Review of bail laws in Victoria
In October 2007, the Victorian Law Reform Commission published a report on bail laws in Victoria. The Commission made over 150 recommendations to improve bail law and practices including that:

• There should be no presumption against bail for any offence – bail decisions should be made on the basis of unacceptable risk;
• The Act should be amended to make it more appropriate for young people;
• Bail support services should be improved for indigenous persons and other marginalised groups who are overrepresented in the justice system.

The Victorian Government is considering these recommendations. [9]