Overview of the Bail Act amendments (2001)

Overview of the Bail Act amendments

The Bail Amendment (Repeat) Offenders Bill was introduced in the NSW Legislative Assembly on 20 March 2002. The Bill, which inserts a new Section 9B into the Bail Act, removes the presumption in favour of bail for certain repeat offenders, irrespective of the type of offence they have committed. Introducing the Bill to Parliament, Attorney-General Bob Debus declared its purpose to: "offer further protection to the community from the risk of repeat offenders".

Traditionally, bail has been refused where there is a risk that an individual will fail to attend court as required. Community concerns have been relevant where there is concern that further offences will be committed or that the accused will interfere with witnesses. The erosion of the presumption in favour of bail has however been a feature of criminal legislation in New South Wales in recent years - amendments in 1993 and in particular in 1998 removed the presumption in relation to certain domestic violence, drug and other serious offences.

The new proposals seek to remove the presumption of bail for less serious offences to deal with:

• Persons charged with other crimes whilst on bail, on parole, or on a bond or community release sentence;
• Any previous offence of failing to appear before a court in accordance with a bail undertaking;
• Any person accused of an indictable offence if the person has been convicted of one or more indictable offences.

The provisions are to be read in conjunction with the proposed new Section 32(1)(b)(vi) which provides that the court must also have regard to the type of criminal history revealed by the accused when considering whether or not to grant bail. As Mr Debus put it: "an accused person with a single prior offence committed five years ago is likely to be treated in a different manner than an accused with five convictions in the past six months." Where an accused is under eighteen or suffers from an intellectual disability, the proposals state that a court must consider any special needs arising out of their age or disability.

The reforms are of concern at a number of levels. First, the deprivation of liberty is one of the most serious actions which can be taken by the state. When a person as yet unconvicted of a crime is placed into custody, the stakes are raised accordingly. It is for this reason that Article 9 of the ICCPR enshrines the right to liberty with Article 9.3 expressly stating that: "It shall not be the general rule that persons awaiting trial shall be detained in custody .."

Second, in terms of the impact on the individual, remand can lead to disruption of life including separation from family and children and possibly loss of employment. Similarly, according to the Australian Institute of Criminology, the proportion of deaths among remand prisoners is almost three times that of the general prison population.

As to the protection of the community, statistics suggest that the net effect of reforms to the Bail Act to date has been an increase in the prison population. The Interim Report of the Select Committee on the Increase in Prisoner Population in New South Wales found that, as a consequence of the amendments to the Bail Act, the general remand population rose from 1,050 in June 1998 to 1,408 by January 2000: an increase of 34% in less than two years (para. 4.65). The rise in remand population was seen as a significant factor affecting the overall increase in prisoner population: the Select Committee's final report found that the prison population in NSW had risen by 20.9% between 1995 and 2001, with the major increase occurring since 1998. The Chair of the Committee expressed concern that:

"The largest contributing factor to the increasing size of the prison population is the growth in the number of people on remand, and the surprising fact that the majority of these people whilst they are held in custody up to their court hearing are ultimately not given sentences of imprisonment".

In terms of the impact upon particular sections of the community, the high proportion of Aboriginal persons among the remand population has been of great concern since the Royal Commission into Aboriginal Deaths in Custody. The increase in Aboriginal women in custody has been particularly marked: nationally, the number of Aboriginal women prisoners has increased by 148% from 1988 to 1998. As at 12 March 2000 in New South Wales there were 119 women on remand, 25 of whom were Aboriginal.

Although it is not known what impact the proposals will have on those with an intellectual disability, this vulnerable section of society already form a large proportion of the prison population. Evidence presented to the Select Committee showed that indigenous inmates were "dramatically over-represented" in the group of prisoners with an intellectual disability (para. 4.129).

The issue of bail is particularly vexed for Aboriginal communities. Submissions to the Select Committee from both the Sydney Regional Aboriginal Corporation Legal Service and from the Aboriginal Legal Service reiterated concerns expressed in the final report of the Royal Commission into Aboriginal Deaths in Custody that, for Aboriginal prisoners, impediments to bail included the need to obtain appropriate accommodation and inability to meet bail:

"Aboriginal people are the most financially disadvantaged group in Australia and it is a source of ongoing problems for out client group that they do not have the funds to meet bail sureties or family members with sufficient assets."

In putting the proposals before Parliament, Mr Debus referred to certain new provisions which provide the court with more options when granting bail including supervised bail accommodation. He stated that this was: "in line with the recommendations made by the Royal Commission into Aboriginal Deaths in Custody in relation to gaol as a last resort and the over-representation of Aboriginal persons in custody".

While proposals to introduce bail-hostel type accommodation are welcome, there are currently no facilities in New South Wales to cater to adult offenders. Further, the recommendations of the Interim Report that the Government fund two bail hostels in New South Wales for women, one of which should be specifically for Indigenous women, have not been taken up. The authors of the Final Report, stated that, while the Department of Corrective Services would continue to research options such as bail hostels/accommodation, the evidence to date was not encouraging (Final Report, para. 6.49, p.141.): "Bail hostels present the possible problem of net widening ... The UK experience over the last decade has seen unprecedented increases in the prison population in spite of a network of bail hostels and intensive probation hostels."

A more certain result of the proposals is the Government's commitment to build a fourth new prison in New South Wales over the next two years, to accommodate an expected further 800 remand prisoners as a result of the proposals. The Premier, Mr Carr has stated that: "This is expensive but putting repeat offenders in jail makes us all safer." Mr Debus told Parliament that the reforms form part of a package of measures aimed at reducing recidivism.

While the extent of the reforms is unknown, evidence presented to the Select Committee suggested that legislative and policy change since 1989 - including the Criminal Procedure (Indictable Offences) Act and amendments to the Sentencing Act 1985 - has contributed substantially to the increase in the prisoner population - with particular impact on the indigenous population. The result - as the headline from yesterday's Sydney Morning Herald put it - a well deserved reputation for New South Wales as "The Convict State".

Last updated 2 December 2001.