The review and suggested amendments respond to unrelenting criticism of the Act by vocal media commentators, voicing the ‘community’s’ concerns about its operation. 2GB radio host Ray Hadley was one strident opponent of the Act, dedicating countless radio shows to attacking its ‘unacceptable risk’ model and the express requirement that a bail authority must have regard to ‘the presumption of innocence and the right to be at liberty’.
Attorney General Brad Hazzard has indicated that, under the amendments, a defendant assessed as an ‘unacceptable risk’ will be refused bail. This is a departure from the current model, which provides that bail may still be granted if conditions can mitigate the risk that an accused will:
- fail to appear at any proceedings;
- commit a serious offence;
- endanger the safety of victims, individuals or the community; or
- interfere with witnesses or evidence.
The Attorney General has stated that the presumption of innocence will be acknowledged in a preamble to the Act, rather than as a ‘purpose’ of the Act. For serious offences, the onus will be reversed, so that the defendant will have to prove that they should be granted bail. A defendant’s association with organised crime will also be taken into account.
Former NSW Director of Public Prosecutions, Nicholas Cowdery QC, has criticised many of the amendments for watering down the presumption of innocence, and reintroducing by the ‘back door’ the presumption against bail for certain offences that existed under the previous Act.
ELYSE METHVEN is a Teaching Fellow and Quentin Bryce doctoral scholar at the University of Technology, Sydney.