Amendments to the NSW Bail Act and How This May Affect the Criminal Justice System

Co-authored by Isabel Strahan

KEY TAKE-OUTS:

• Additional amendments to the Bail Act 2013 were assented to on 27 June 2022.
• These amendments make it significantly harder to be granted bail and has negative implications regarding the increased pressure on the Court and criminal justice system through its anticipated effect on guilty pleas.
• The amendments were made with little consultation from the community or legal professionals which raises issues in relation to its practical application and compatibility regarding already existing programs.

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What were the recent changes to the Bail Act 2013?

The NSW government has made amendments to the Bail Act 2013, that was assented to on 27 June 2022. These amendments make it harder to be granted bail which has potential negative implications regarding the pressure on the Court and criminal justice system.

The insertion of section 22B and 30A was seemingly rushed through Parliament and passed with little community consultation and will have significant influence on the way in which Bail is applied and granted by the Court.

Section 22B reads:

“(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court—

(a) on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or

(b) on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.

(2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person’s detention is not justified.

(3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section.

(4) This section applies despite anything to the contrary in this Act. (5) In this section— conviction also includes a plea of guilty.

Note— Conviction is defined in section 4(1) to include a finding of guilt.”

Consequences of the 2022 Amendments to the NSW Bail Act

In summation, the application of section 22B of the Bail Act 2013 means that people who plead guilty or are eventually found to be guilty and are likely to be imprisoned for the offence, are required to establish a special or exceptional circumstance in order to be granted bail pending their sentencing.

This high standard contradicts the Early Appropriate Guilty Plea program which was introduced in NSW in early 2018. The program aims to encourage defendants to enter guilty pleas at an early stage, which would relieve pressure off the Court and criminal justice system, and in return, the defendant would receive a discounted sentence.

Section 22B of the NSW Bail Act dissuades a person from entering a guilty plea as the ‘special or exceptional circumstance’ is an especially high threshold to meet. In practice, Section 22B could lead to a reduction in guilty pleas, leading to significant delays in cases which will add more pressure onto the justice system in terms of lengthy hearings and the time/costs incurred by the Court. In addition, this will lead to strain on the already fraught resources of NSW Police who will be required to prepare briefs of evidence for matters which would not ordinarily proceed to hearing.

Changes to the NSW Bail Act May Increase Remand

Furthermore, this amendment will undoubtably lead to a higher number of people being detained in our already-overcrowded prison system. This places additional pressure on public resources and increases the cost of incarceration.

Section 30A reads:

If bail conditions impose a requirement for the accused person to be subject to electronic monitoring—

(a) the bail authority must be satisfied the electronic monitoring is of a standard that at least meets any minimum standards prescribed in the regulations, and

(b) the bail condition must require the electronic monitoring to be of a standard that at least meets any minimum standards prescribed in the regulations.

Controversy surrounding the 2022 amendments to the NSW Bail Act

The amendments to the NSW Bail Act 2013 are highly criticised by legal professionals for its lack of consultation and potential negative implications. The President of the NSW Law Society, Ms Joanne van der Plaat, has expressed how the amendments would affect the criminal justice system by adding additional pressure whilst the system is attempting to recover from the backlog of cases experienced during the COVID-19 pandemic.

She further noted that a balance must be stuck between reducing the risk of re-offending and the principle of innocent until proven guilty, and that these amendments fail to strike that balance.

The insufficient time that was allowed for consultation with experts of the field has effectively led to the President of the NSW Law Society saying that “rushed reform can lead to flawed laws” in relation to Section 22B and 30A.

The Aboriginal Legal Service has also exclaimed their disdain relating to the lack of consultation. The ALS had said that the proposed amendments could see more Aboriginal adults and children imprisoned which could derail the progress of closing the gap.

The amendments to the NSW Bail Act 2013, not only makes it more difficult to be granted bail but has significant negative implications regarding its influence on the justice system and its application.

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