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.

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