NSW Amends Bail Laws In Response To Martin Place Siege Review
Monday 16 November 2015 @ 11.32 a.m. | Crime | Legal Research
NSW has passed new bail legislation in response to three recent reviews of bail and sentencing. The Bail Amendment Act 2015 was assented on November 5 after being passed through Parliament without amendment. The Act implements recommendations from the final report of the Hatzistergos Review into the Bail Act, this year’s Sentencing Council review and the Joint Commonwealth-New South Wales Martin Place Siege Review.
In a media release issued when the Act was initially introduced into Parliament, Attorney-General Gabrielle Upton said the changes were designed to “better protect the community”:
“We’ve witnessed the brutal and senseless destruction terrorism has caused, and we will do what it takes to protect the community against any identified risks.
The changes will make it extremely difficult for people to get bail if they are already facing or have been convicted of a terrorism offence, or are subject to a terrorism control order. These people will be bail refused if they are charged with any offence carrying a custodial sentence unless there are exceptional circumstances.”
Amendments in response to the Martin Place Siege Review
Firstly, the Act introduces three new factors to be considered under a section 18 consideration of matters that must be considered by the bail authority for the purposes of the unacceptable risk test. These terrorism related factors include associations with terrorist organisations, whether the accused has made statements of support for terrorist acts or violent extremism and whether the accused has any associations or links with people or groups advocating these acts.
Secondly, the Act introduces a new section 22A which requires bail authorities to refuse bail (except if exceptional circumstances exist) when a person is being charged with being a member of a terrorist organisation under section 310J of the Crimes Act 1900 (NSW). Bail authorities should also refuse bail if the accused has previously been convicted of a Commonwealth or NSW terrorism offence, or if proceedings on a terrorism offence are currently ongoing, or if the accused is subject to a control order under Commonwealth legislation.
Amendments in response to the Hatzistergos Review and the Sentencing Council Review
The Hatzistergos Review of the Bail Act 2013 was begun in June 2014 following concerns raised after a number of high profile decisions to grant bail. An interim report was released in July 2014 that resulted in the Bail Amendment Act 2014 (NSW) – for more on this see TimeBase's earlier article. In her second reading speech for the Bill, Ms Upton noted that “[o]verall, Judge Hatzistergos found the amended Bail Act and the show cause test are working well and his recommendations in the final report aim to address operational issues and further streamline the operation of the Bail Act.”
The Sentencing Council also had three matters referred to it by the NSW Government, including the definition of “serious personal violence offence” which is include in the “show cause” category. Currently, people previously convicted of such an offence in New South Wales must show cause why their detention is not justified. The Act adopts the Council’s recommendation that this should apply to people convicted of serious personal violence offences in any Australian jurisdiction.
Commencement dates for the Act have not yet been proclaimed.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Sources:
Bail Amendment Act 2015, Bill and Second Reading Speeches - available from TimeBase's LawOne service
Media Release: ?Stronger bail laws to protect against terror risk (Justice NSW, 20/10/2015)
