It is pleasing to see that the government proposes to do away with the clumsy system of offence-based presumptions that currently blights the Bail Act. Instead of replacing this with a universal presumption in favour of bail (as recommended by the NSWLRC), the government has opted for an ‘unacceptable risk’ model. A police officer or court making a bail decision will be required to assess whether there is an unacceptable risk that an accused person will fail to appear at court, commit serious offences while on bail, interfere with witnesses, and so on. If such a risk exists, the next question is whether it can it be mitigated by setting bail conditions.
The ‘unacceptable risk’ proposal has been criticised in some quarters because it does not create a presumption in favour of bail and does not make clear where the burden of proof lies. From an accused person’s standpoint, a presumption in favour of bail would of course be preferable. However, the uncertainty about who bears the onus of proof does not differ markedly from the current situation, where many accused persons face a neutral presumption.
It seems that the restriction on repeat bail applications, currently in Section 22A of the Bail Act, is here to stay, despite a strong push for it to be repealed or at least for juveniles to be exempted from its operation. Section 22A essentially prevents an accused person who has been refused bail from making a further bail application, unless there is a change in circumstances or new information to put to the court. Section 22A has been widely criticised for having a particularly harsh impact on young people. Under the government proposal, juveniles will get a second chance at a bail application before the restriction kicks in.
Another big-ticket item for young people is the way in which bail conditions are enforced. Under the current Act, a police officer may arrest a person who is thought to have breached a bail condition. In recent years, police have adopted a practice of arresting people even for the most trivial breaches. This has had a particularly harsh effect on children, who are often subject to onerous bail conditions including curfews, place restrictions and non-association conditions. It is not uncommon to appear at the Children’s Court in the morning and find the cells full of young people who have spent the night in custody because of a minor breach which could have been dealt with in a more appropriate way. The NSWLRC recommended the inclusion of an ‘arrest as a last resort’ provision (similar to section 99(3) of the Law Enforcement (Powers and Responsibilities) Act, which applies to an arrest for the purpose of commencing criminal proceedings for an offence). The government has not gone quite this far, but is proposing to create a hierarchy of options for responding to a breach of bail (starting with taking no action and ending with arrest) and a list of factors for police to take into account in deciding what action to take.
As the contemporary media coverage shows, the response to the government’s proposal has been mixed. The general consensus seems to be, ‘It’s not everything we want, but it’s a whole lot better than what we’ve got now.’
The government response is available at
Some relevant media coverage can be found at
JANE SANDERS is Principal Solicitor, Shopfront Youth Legal Centre at Darlinghurst.