Magistrate Says New NSW Bail Laws Will Mean “We’re All Redundant”

Tuesday 2 December 2014 @ 11.45 a.m. | Crime

Magistrate Andrew George of the Parramatta Bail Court has made headlines for his criticism of what he called the “Ray Hadley Bail Act”, saying the yet to be commenced laws would effectively made magistrates redundant.  According to the Sydney Morning Herald:

“In between matters at the Parramatta Bail Court on Sunday morning, magistrate Andrew George turned to police prosecutors and asked them in open court what they thought of the "Ray Hadley bail act"… "Where are they going to put them all? Given the normal clientele we see on a weekend, I don't think anybody is going home,” Mr Georg e said.”

Attorney-General Brad Hazzard told the Daily Telegraph that: “All police and judicial officers are being trained in the new Bail Act and its appropriate use will ensure that community safety is paramount.”

Background To The Changes

The new changes are a result of the Bail Amendment Act 2014 (NSW) (“the Amendment Act”), which was assented in September this year but has not yet been proclaimed.  The Amendment Act was the response to an “urgent review” of the Bail Act 2013 (NSW) (“the Act”).

The Act introduced a “risk-based” model for determining bail, replacing a presumption against bail for serious offences with a broader consideration of whether there was an unacceptable risk of reoffending.  The Act attracted a substantial amount of criticism, especially following several high profile decisions under the Act, including the granting of bail to former Comanchero bikie boss Mahmoud “Mick” Hawi.  One of the strongest critics was radio host Ray Hadley, who according to the Sydney Morning Herald “claimed on air to have received 400 emails from serving police officers complaining about magistrates’ decisions.”

As a result of “concerns in the community” the Government commissioned a review by former Labor Attorney General John Hatzistergos. The review itself drew more criticism, this time from people who believed it was too early to commence such a wide ranging review just a month after the changes had started.  Former NSW Director of Public Prosecutions Nicholas Cowdery told the Sydney Morning Herald in July that the review was “completely inappropriate and unnecessary” and the result of “political grandstanding that denies the opportunity for the act to be given proper effect…”

The Changes

 The Amendment Act was designed to give effect to the recommendations in the Hatzistergos review.   The Government adopted all the recommendations resulting from the review, with Mr Brad Hazzard calling the amendments “common-sense changes”.

Preamble

Firstly, the Amendment Act moves “the common law presumption of innocence and the general right to be at liberty” from a “purpose” of the Act to the Preamble.  The preamble also addresses “the need to ensure the safety of victims of crime, individuals and the community” and “the need to ensure the integrity of the justice system”.

Show Cause Offences

The Amendment Act also introduces new “show cause offences”.  New section 16A requires bail authorities to refuse bail “unless the accused person shows cause why his or her detention is not justified”.  New section 16B outlines the “show cause offences”, which include offences punishable by life imprisonment, a repeat personal violence offence, various serious indictable offences including weapons possessions and some kinds of sexual assault offences, serious indictable offences committed on bail or parole and various kinds of drugs offences including possession and trafficking.  Even if a person shows cause, they are still subject to the “unacceptable risk” test.

One Stage "Unacceptable Risk" Test

The Amendment Act also replaces sections 17-20 of the Act, which outline the “unacceptable risk” test.  Instead of the previous method, where bail conditions were determined after the unacceptable risk test, the new sections aim for a “one-stage test” that Attorney General Hazzard said “will allow the bail authority to more directly match a bail concern to a proposed bail condition.”

The amendments provide that the bail authority must now assess if there is a “bail concern”, such as a concern the accused will fail to appear or commit a serious offence.  Any bail concerns are to be considered against a long list of factors including criminal history, likelihood of a custodial sentence, strength of the case and any “criminal associations”. For “serious offences” the views of the victim or the victim’s family may also be a factor.  The authority also has to consider conditions that may be imposed to address any bail concerns at the same time.  The bail authority must refuse bail if they assess these concerns and find that there is an unacceptable risk.

It is not yet known when the Amendment Act will commence.

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