In July 2014, the former Attorney General John Hatzistergos issued a report following his review (Review) of the Bail Act 2013 (NSW) (the Act), commissioned by the government. The Review's main objective was to determine whether the Act was appropriately framed to achieve its objectives. It should be noted that the Act only commenced on 20 May 2014.
Following the Review, on 5 August 2014, the New South Wales government introduced the Bail Amendment Bill 2014 (the Bill) into Parliament, seeking to give effect to the Review's recommendations. The key parts of the Bill are described below.
Show cause requirement
A show cause requirement has been introduced for certain offences and provides that bail must be refused unless the accused shows that his or her detention is not justified.
The listed offences subject to the show cause requirement include; an offence punishable by life imprisonment, or a serious personal violence offence, or an offence involving wounding or the infliction of grievous bodily harm, if the accused has previously been convicted of a serious personal violence offence.
If the accused has demonstrated why their detention is not justified, then the unacceptable risk test is applied.
Unacceptable risk test
The unacceptable risk test in the Act is currently a two stage test, where the bail authority must first decide whether the accused presents an unacceptable risk and then must decide whether the risk can be mitigated by bail conditions.
The Bill reduces this to considering whether the accused presents an unacceptable risk, considering any bail concerns. This will apply to all offences, not just those subject to the show cause requirement.
A bail concern is a concern that the accused, if released will fail to appear at any proceedings for the offence, will commit a serious offence, endanger the safety of victims, individuals or the community or interfere with witnesses or evidence. In assessing bail concerns, the bail authority must consider the sixteen factors listed in section 18 of the Act including whether the accused person has person has a history of compliance or non-compliance with bail acknowledgements, bail conditions, apprehended violence orders, parole orders or good behaviour bonds and whether the accused person has any criminal associations.
The views on the Bill are divergent. The Attorney General has stated that the Bill increases stringency on bail decisions for people who pose significant risks to the community. Others including the NSW Law Society and the NSW Bar Association have expressed concerns that the Bill undermines the presumption of innocence, that the Bill is a reactive approach to media pressure and the Bill disregards the NSW Law Reform Commission and its stakeholder's process and recommendations which brought about the Act.
The Bill has been adjourned for debate on a date to be determined.
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In the media
Victims speak up on parole
The latest NSW State Parole Authority annual report reveals that
victims are having a greater say in parole matters, the NSW
Attorney-General and Minister for Justice Brad Hazzard said. The
State Parole Authority makes decisions relating to the supervised,
conditional release of offenders from custody, the conditions of
release and the revoking of parole orders for non-compliance (14
August 2014) [
PDF, 201kb]
New laws to resolve rural hedge disputes
The NSW Government has accepted the recommendation of a statutory
review of the Trees (Disputes Between Neighbours) Act 2006 to
enable the court to deal with hedge disputes in rural-residential
areas. The Land and Environment Court will only adjudicate in cases
where the aggrieved resident has made reasonable efforts to resolve
the dispute with the hedge owner (11 August 2014) [
PDF, 199kb]
NSW first in the country to issue electronic
warrants
Attorney General Brad Hazzard announces NSW is the first state to
introduce electronic arrest warrants, ensuring better protection of
victims and the community. It also means any orders to revoke
arrest warrants can happen instantly reducing any risk of unlawful
arrest (11 August 2014) [
PDF, 79.8kb]
Federal Court upholds validity of examination notices
issued to Paul and Moses Obeid
The Federal Court has found that compulsory examination notices
issued by the ACCC to Paul and Moses Obeid are valid. The notices
were issued under Section 155 of the Competition and Consumer Act
2010 (CCA) and require Paul and Moses Obeid to attend the ACCC
offices, give evidence and produce documents in private
examinations (08 August 2014)
Federal Court upholds validity of examination notices issued to
Paul and Moses Obeid
NSW roads minister says he may have to look at
"even harsher" measures to improve
compliance
The NSW Government has threatened to bring in harsher penalties
for those caught breaching travel restrictions on over height
trucks, to stop people putting other motorists at risk causing
significant damage to our state's infrastructure. A year since
NSW increased fines to more than $2,000 and six demerit points for
breaches, 41 truck drivers have still been caught breaking the law
(06 August 2014)
More...
Government tightens bail laws
The NSW Government will introduce changes to the Bail Act,
ensuring that those who pose an unacceptable risk to the community
will no longer be eligible for bail. The changes also include a new
onus on those accused of the most serious offences to show why
their detention in custody is not justified. The enhancements to
the State's bail laws follow the completion of an independent
review by former NSW Attorney General John Hatzistergos (05 August
2014)
[Accessible PDF, 95kb] The Hatzistergos review can be found
here.
Bail reforms premature, reactionary and
arbitrary
The Law Society of NSW has criticised the government's bail
reform proposal which does away with the presumption of innocence
for some crimes. The NSW Government's proposal is not simply a
tweaking of the current law of bail, it undermines the system by
focusing on the types of offences rather than the circumstances of
the particular case (06 August 2014) More...
Bail changes threaten basic legal rights -
NSW
The government's proposed changes to the Bail Act, which only
commenced on 20 May this year, are a retrograde step which have the
potential to threaten fundamental legal rights, according to the
president of the NSW Bar Association. The government proposals,
based on the recommendations of the Hatzistergos Bail report, bring
back special categories of case where a different bail test for
serious offences is to be applied (05 August 2014).
More...
Government tightens bail laws
Changes will be made to the Bail Act to ensure those posing an
unacceptable risk to the community will not be eligible for bail.
The amended Act will define "serious offences" by a range
of features of the alleged offence. The changes are modelled on
Victorian and Queensland Acts, both of which have risk assessment
models (05 August 2014) Government
tightens Bail Act
In practice and courts
ICAC: Operation Spicer public inquiry witness list -
week beginning 18 August 2014
Operation Spicer public inquiry witness list - week beginning 18
August 2014 was updated on 15 August 2014 Please note that this
list is subject to change.
Operation Spicer public inquiry witness list - week beginning 18
August 2014
ICAC: Prosecutions information webpage
updated
The ICAC's webpage on prosecution activity relating to
Commission investigations was updated on 15 August 2014
Prosecutions information webpage updated
NSW Supreme Court (Amendment No 425)
Rules
The
Supreme Court Rules (Amendment No 425) 2014 No. 500 (NSW) amend
the
Supreme Court Rules 1970 No. 1 (NSW) and the
Criminal Appeal Rules 1952 No. 2 (NSW). The purpose of the
amending Rules is to make amendments consequent on the enactment of
the
Bail Act 2013 No. 26 (NSW) by removing certain rules and forms
that are no longer necessary and updating references to the
repealed Bail Act 1978 No. 161 (NSW).
The amending Rules commenced on 8 August 2014.
NSW Updated Practice Note - Representative
Proceedings
The Supreme Court has released
Practice Note No. SC Gen 17 - Supreme Court Representative
Proceedings (12 August 2014), which is designed to facilitate
the management of representative proceedings and, in particular, to
assist in their prompt and efficient resolution. The updated
Practice Note commenced on 12 August 2014
Further information from the Supreme Court
Published – articles, papers, reports
The impact of special commissions of inquiry/crime
commissions on criminal trials
A speech by Justice Weinberg, presented at the Supreme Court of
New South Wales Annual Conference in Wollongong, 01 August 2014
The impact of special commissions of inquiry/crime commissions on
criminal trials
Cases
Fire Brigade Employees' Union v Fire and Rescue NSW
[2014] NSWCATAD 113
The decision of the respondent is affirmed.
Administrative review - government information - public access -
conclusive overriding public interest against disclosure - Cabinet
information
Administrative review - government information - public access -
public interest test - whether public interest
considerations against disclosure on balance outweigh the public
interest considerations in favour of disclosure
Administrative review - government information - public access -
prescribed public interest considerations against disclosure -
reveal a deliberation in such a way as to prejudice a deliberative
process of the agency - prejudice the effective exercise by agency
of its functions - expose a person to an unfair advantage as a
result of the premature disclosure of information concerning
proposed action of the agency More...
Legislation
New South Wales
Regulations and other miscellaneous
instruments
Children (Protection and Parental Responsibility) Regulation
2014 (2014-496) — published LW 8 August 2014
The object of this Regulation is to remake with minor changes, the
provisions of the Children (Protection and Parental Responsibility)
Regulation 2008 with respect to undertakings given under the
Children (Protection and Parental Responsibility) Act 1997,
counselling services, protocols relating to the way functions
conferred on police officers and other persons under the Act are to
be exercised and records to be made by police officers who remove
children from public places and escort them to other places.
Supreme Court Rules (Amendment No 425) 2014 (2014-500) —
published LW 8 August 2014
The object of these Rules is to amend the Supreme Court Rules 1970
and the Criminal Appeal Rules consequent on the enactment of the
Bail Act 2013 by removing certain rules and forms that are no
longer necessary and updating references to the repealed Act.
Uniform Civil Procedure Rules (Amendment No 67) 2014 (2014-501)
— published LW 8 August 2014
The object of these Rules are to correct a cross-referencing
error, provide that the pages of exhibits to affidavits must be
(where practicable) be consecutively numbered and extend from 4 to
7 days, the period during which an execution creditor on whom a
notice of claim is served is given the opportunity to serve a
notice of admission on the Sheriff, and after which the court may
make an order granting relief by way of interpleader (if no notice
is served and the claim is not withdrawn).
Uniform Civil Procedure Rules (Amendment No 68) 2014 (2014-502)
— published LW 8 August 2014
The object of these Rules is to enable the Supreme Court to make
an order dismissing proceedings entered in the Possession List
(being proceedings in the Common Law Division of the Supreme Court
in which a claim for possession of land is made) that have been
inactive for over 9 months, without the parties to the proceedings
having to be notified of the proposed order. (Currently, the
Supreme Court may dismiss such proceedings with notice to the
plaintiff and each other active party, if the proceedings have been
inactive for over 5 months.)
Bills introduced Government
Child Protection (Offenders Registration) Amendment (Statutory
Review) Bill 2014
The object of this Bill is to make various amendments to the Child
Protection (Offenders) Registration Act 2000 as a result of a
statutory review under section 26 of that Act. The proposed changes
include expanding the classes of registrable offences to include
manslaughter of a child, wounding or grievous bodily harm of a
child under 10 years of age and abduction of a child and increasing
the time in which child protection registration orders can be
made.
Mining Amendment (Small-Scale Title Compensation) Bill
2014
A Bill for an Act to amend the Mining Act 1992 and other
legislation to provide, in respect of small-scale titles, a system
for the payment of compensation to landholders, mechanisms for
resolving disputes and the imposition of levies; and for other
purposes.
5/08/2014 Assembly: Notice of Motion (Roberts, Anthony)
Bills revised following amendment in Committee
Road Transport Amendment (Mandatory Alcohol Interlock Program) Bill
2014
The object of this Bill is to amend the Road Transport Act 2013,
to replace provisions of the Act giving a court the discretion to
order the use of breath alcohol interlock devices fitted to motor
vehicles as an alternative to disqualification for drivers
convicted of certain alcohol-related driving offences, with
provisions requiring the making of a mandatory interlock order
imposing a mandatory period of disqualification together with such
an interlock requirement.
The Bill also provides accreditation for persons installing or otherwise carrying out functions in relation to the interlock devices, for the Roads and Maritime Services (the Authority) to enter into agreements concerning the exercise of such functions and to enable the Authority to require holders of licences who repeatedly exceed specified demerit point thresholds to undertake driver education courses and driver knowledge test
Bills introduced Government
The objects of this Bill include to require bail for certain
serious offences to be refused unless the accused person shows
cause why his or her detention is not justified, to convert the
current two-step unacceptable risk assessment process that applies
to all bail decisions into a one-step risk assessment, so that the
bail conditions that could reasonably be imposed to address bail
concerns are considered as part of an unacceptable risk assessment,
and bail must be refused if there are any unacceptable risks.
The Bill also sets out additional matters to be considered by a
bail authority in applying the unacceptable risk test e.g. whether
the accused has a history of compliance or non-compliance with bail
acknowledgements, bail conditions and apprehended violence orders,
whether the accused has any criminal associations and if it is a
serious offence, the bail authority must consider the views of the
victim or family of the victim to the offence, in relation to a
concern about the safety of the victim, individuals or the
community.
Constitution Amendment (Parliamentary Presiding Officers) Bill
2014
The object of this Bill is to amend the Constitution Act 1902 to
ensure that both the President of the Legislative Council and the
Speaker of the Legislative Assembly (and deputies acting when they
are unavailable) may exercise the functions of Parliamentary
presiding officers relating to the administration of Parliament and
the employment of Parliamentary staff during a State general
election period when the Legislative Assembly is dissolved and the
Legislative Council is suspended.
The Bill also makes a consequential amendment to the Parliamentary
Remuneration Act 1989 to ensure that Parliamentary presiding
officers (and their deputies) continue to receive their usual
remuneration during that State general election period.
Non-Government
City of Sydney Amendment (Business Voting and Council Elections)
Bill 2014
The objects of this Bill include amending the City of Sydney Act
1988 to require the Electoral Commissioner keep voluntary registers
of non-resident owners and occupiers and rate paying lessees who
are entitled to vote in the City of Sydney elections, to require
the electoral rolls for those categories to be prepared on the
basis of the registers (subject to confirmation of details) and to
provide for non-resident owners, occupiers and rate paying lessees
to be treated as postal voters, subject to the right to elect to
vote instead in person.
City of Sydney Amendment (Elections) Bill 2014
The objects of this Bill include requiring the general manager of
the Council of the City of Sydney to keep and maintain a register
of all persons entitled to be enrolled on the roll of non-resident
owners of rateable land or the roll of occupiers and rate paying
lessees under the City of Sydney Act 1988.
Bills revised following amendment in Committee
Disability Inclusion Bill 2014
Mutual Recognition (Automatic Licensed Occupations Recognition)
Bill 2014
The objects of this Bill include to provide for the automatic
mutual recognition of certain occupation licences issued in other
jurisdictions, so that a person who holds a recognised licence will
be deemed to hold the equivalent licence in New South Wales.
Bills passed by both Houses of Parliament
Disability Inclusion Bill 2014
This Bill relates to the accessibility of mainstream services and
facilities, the promotion of community inclusion and the provision
of funding, support and services for people with disability.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.