: NSW LRC Report on Bail: a step forward for young and disadvantaged people?

NSW LRC Report on Bail: a step forward for young and disadvantaged people?

Jane Sanders
New South Wales

On 13 June 2012, the NSW Law Reform Commission made public its report on bail after receiving a reference from the Attorney-General, the Hon. Greg Smith SC MP, on 8 June 2011. The Attorney-General’s media release at the time of announcing the reference indicated his concern that ‘juveniles charged with petty offences are being forced to mix with hardened criminals while on remand’. Subsequent comments to the media have indicated the Attorney-General’s concern about the high number of juveniles on remand and his desire to promote education and rehabilitation for young people.

The facts for NSW’s juvenile remand population are indeed alarming. The number of young people on remand has increased dramatically over the last decade, including a 32% increase from 2007 to 2008. This spike in juvenile remand numbers is partly attributable to the enactment in late 2007 of section 22A of the Bail Act, which limited repeat bail applications. Also to blame are police practices, especially the aggressive monitoring and enforcement of bail conditions such as curfews, and a zero-discretion approach which sees people arrested for a minor breach.

In 2010, the average daily number of young people in juvenile detention centres was about 400; about half of these were on remand, as opposed to serving a sentence. Most disturbing of all is the fact that about 80% of young people on remand do not go on to receive a custodial sentence.

The NSW Law Reform Commission shared the Attorney’s concerns — and then some! Its report ran to about 400 pages, including five chapters dedicated to a review of the history of the Bail Act as well as its social, criminological and legal effects. The Commission’s recommendations generally seek to strip NSW’s bail laws back to basics, starting with a uniform presumption in favour of bail, replacing the complex and arbitrary scheme of presumptions that presently exists.

Additionally, the report has dedicated a chapter and a range of recommendations towards young people and other people with special vulnerabilities. Significantly, the Commission recommends that s 22A of the Bail Act should not apply to juveniles. It also recommends including a provision that arrest must be a last resort for police when dealing with breaches of bail conditions.

Even more eagerly-awaited than the Commission’s report is the Government response, which we understand is due later in 2012. Despite a hysterical law and order campaign being promulgated mainly by the Daily Telegraph and 2GB, the Attorney-General is sticking to his guns and calling for bail reform, at least where young people are concerned. It is to be hoped that, in developing its response, the Government resists succumbing to such alarmist calls and takes the evidence-based and logical approach supported by the Commission’s report.

JANE SANDERS is Principal Solicitor at The Shopfront Youth Legal Centre, Darlinghurst.

(2012) 37(3) AltLJ 205
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