Number 24 — Bail: An examination of contemporary issues

Bail: An examination of contemporary issues

The Bail Act (the Act), introduced in 1978, sought to codify all bail legislation and establish specific criteria for courts when determining bail. In its original form, the Act prescribed a presumption in favour of bail for all but a small number of offences, being the more serious robbery offences. Since then, a series of legislative amendments have increased the number of exceptions to the presumption in favour of bail.

The gradual erosion of the presumption in favour of bail has been the subject of much criticism. It has been argued that this legislative trend has created "a significant potential for anomalies to arise and for any coherent philosophy behind the law of bail to be lost". As far back as 1987, Weatherburn commented "if public opinion no matter how poorly informed, is to become sufficient cause for removing a presumption in favour of bail, the reform engendered by the original Bail Act will disintegrate under the weight of all the exceptions". Indeed if the current trend continues, the presumption in favour of bail may be the exception rather than the rule.

The decision to grant or refuse bail is an extremely important one. Refusal of bail not only seriously infringes an individual's basic liberty, but also has broader ramifications in the subsequent criminal processing of that individual, such as lack of access to legal and rehabilitation resources.

Furthermore, bail laws, and decisions based on them, clearly highlight the tension between the competing ideas of the presumption of innocence and protection of the community. An examination of recent bail laws and associated parliamentary debates reveals a shift away from upholding the rights of the individual towards appeasing community fear of violent crime. It is therefore timely to provide an overview of recent changes to NSW bail law and present statistical findings relating to bail. In so doing, this paper considers the underlying assumptions and perspectives on bail, as well as the approach to bail in other jurisdictions.