Australia: NSW bail laws and indigenous Australians

Last Updated: 25 December 2014
Article by Hayley Aldrich

While there is not common law right to bail, the Bail Amendment Act 2014 (NSW) ("2014 Act") has been criticised for impinging on the fundamental principles of the presumption of innocence and the right to liberty, as well as representing a move back to the system of offence based presumptions and "conflating" bail with "punishment" and "guilt".

On 18 September 2014 NSW Parliament passed the 2014 Act to amend the Bail Act 2013 (NSW) (2013 Act), which had only commenced on 20 May 2014. The 2013 Act had in turn replaced the Bail Act 1978 (NSW) (1978 Act).

Recent changes to the State's bail laws have drawn criticism for the implications for Indigenous Australians. However, historically NSW bail laws have always had a "disproportionate impact" on the State's Indigenous population. As the Director of the Bureau of Crime Statistics and Research, Dr Don Weatherburn, said in 2010

"Whenever the justice system gets tougher, as it has in New South Wales and other states, it always has a bigger impact on Aboriginal people than it does on non-Aboriginal people."

Why is this so?

1978 Act
The 1978 Act codified the State's bail laws which have previously been drawn from the common law and a number of different pieces of legislation. The Wran Government endeavoured to create a more just bail regime by moving away from monetary bail. Speaking on the Bill in 1978, Paul Landa MP said

However, under the 1978 Act the Court retained its discretion to impose monetary bail conditions. This resulted in, according to Melanie Schwartz, so-called "Financial conditions", which in 2005 constituting up to "70 per cent of conditional bail conditions". This had particularly serious implications for Indigenous Australians. From a socio-economic viewpoint, Indigenous Australians that may find themselves applying for bail in local courts, without being in possession of the requisite amount.

In her study, Schwartz found that in one NSW Court, "financial security" was granted in 92% of cases, with "bail sureties" amounting up to $5,000 despite half of the local Aboriginal community earning under $300 per week.

Under the 1978 Act, NSW had the highest number of people being held in prison, awaiting trial, after being refused bail in Australia. In 2010 25% of NSW's prison population were yet to be convicted, 40% of whom would later be acquitted. Indigenous Australians were particularly affected, and "overrepresented", with 72% of Indigenous prisoners in 2008 being in prison on remand. One of the reasons for this over-representation is the socio-economic fact that many in the community simply can not afford to post bail. The fact that an accused, or someone in their community that could be considered an "acceptable person" to provide financial security for the accused, may simply not have the requisite financial amount in their bank account at the time, does not prevent either person from being of good surety. As Schwartz stated

"A policy position that requires an Aboriginal 'acceptable person' to show, at the time of their pledge, possession of the entire amount of money that might be required to pay at a future date, may be considered unreasonably onerous."

In 2002, The Aboriginal Justice Advisory Council (AJAC) found that Aboriginal offenders were less likely to have their bail dispensed with, and more likely to have their bail refused. The AJAC also found that

11% of Aboriginal defendants who are refused bail are either found not guilty or have their case dismissed, and 45% of Aboriginal remandees do not receive a custodial sentence when their matters are finalised.

2013 Act
In 2011 the NSW Law Reform Commission was instructed by the O'Farrell Government to undertake a review of the 1978 Act. In its 35 year operation, the 1978 Act had been amended 85 times, resulting in a "complex" system of offence based presumptions.

While, the O'Farrell Governments did not adopt the Commission's primary recommendation of a "universal presumption in favour of bail", instead preferring a two-stage "unacceptable risk" model, the Government did adopt the Commission's recommendation that "being Aboriginal and/or Torres Strait Islander" constituted a "special vulnerability" that must be taken into account by a bail authority when employing the unacceptable risk test to decide whether or not to grant bail.

In its final report the Commission identified the high "rates of un-sentences detention for young people and Indigenous people" as a key concern. The "special vulnerability" of young and Aboriginal people is recognised in the 2013 Act, which allowed for those groups to make more than one bail application. However, by not adequately addressing the impacts of bail upon Aboriginal offenders, the so-called "overhaul" of NSW bail laws was not be as far-reaching as the O'Farrell government had advertised.

Alleged offenders who have not been granted bail still risk disadvantages to preparing their legal cases, as, amongst other aspects, those on remand have access to fewer resources to prepare their defence and are unable to impress the court with having met their bail conditions.

The NSW Bureau of Crime Statistics and Research have found that this year the prison population was at a record high of 10,917. This was due to higher arrest rates, as well as tougher sentences – including tougher bail laws.

2014 Act
Just over a month into the operation of the 2013 Act the Government announced a review to be undertaken by the former Attorney General John Hatzistergos, following three bail decisions made under the new legislation garnering intense media scrutiny and criticism. References to the principles of the "presumption of innocence and the general right to be at liberty" have been moved from s 3A to the newly created Preamble, meaning, though still technically being referenced in the legislation, this presumption is not binding. This common law presumption of innocence is thus acknowledged, rather than being part of the purpose of the Act.

With being barely 30 days old, only a handful of decisions were available regarding the 2013 Act. Thus, many in the legal community, including the NSW Legal Association and the NSW Bar Association, felt that the evidence on which proper recommendations to the Act could be made simply did not exist yet.

Notwithstanding this, the Government adopted Mr Hatzistergos' recommendations and introduced the 2014 Act to amend 2013 Act, mandating that a number of additional factors must be taken into account when making a bail decision as well as requiring individuals accused with "certain serious offences" to "show cause" why they should be granted bail. For alleged offenders from lower socio-economic backgrounds, an obvious issue would be the being able to fund an appropriate application showing cause of why they should be granted bail, let alone paying the bail surety should bail be approved – a problem that has been plaguing the Aboriginal Community when it comes to bail applications for years.

Recent events in NSW have again raised the public demand for stricter bail laws. However, it is prudent to remember that the public sentiment that leans towards these stricter laws, are not guided by the legal knowledge or fundamental principles that underpin the criminal justice system – that is the presumption of innocence.

The recent highly public bail applications that triggered the Baird government's lightening-fast review of the 2013 Act were all for serious crimes. By imposing sweeping stricter and harsher bail laws across the board as a result, the new Act arguably could result in placing further disadvantage on those in remand who are of lower-socio economic backgrounds. The NSW Government is now investigating whether further amendments to the State's bail laws are required in light of the Martin Place Siege.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions