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.
To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to lawyers employed in the public sector.
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
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
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
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 -
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
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)
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
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
Fire Brigade Employees' Union v Fire and Rescue NSW
 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...
New South Wales
Regulations and other miscellaneous
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
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
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
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.
City of Sydney Amendment (Business Voting and Council Elections)
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
Mutual Recognition (Automatic Licensed Occupations Recognition)
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.