16 September 2014
(Second Reading Debate, 10 September 2014, Legislative Assembly, NSW Parliament)
I strongly oppose the Bail Amendment Bill. It will see the incarceration of people who are ultimately not convicted of charges or who are convicted but not given a prison sentence. The bill runs counter to a fundamental human right that all healthy democracies must preserve—that is, the presumption of innocence.
I support the changes to bail passed by this Parliament last year, which only came into effect in May. Evidence showed that the tough bail laws New South Wales had prior to this did not reduce crime rates but massively increased the prison population while people awaited trial.
Over the past 15 years, the number of unsentenced prisoners more than trebled; and New South Wales has the largest number of prisoners on remand in the country. The changes to the bail regime were recommended by the independent New South Wales Law Reform Commission following a thorough and considered process that took over a year. They received multi-partisan support in the Parliament and I am sorry that they are being abandoned by this bill. Under the system that only just commenced, bail authorities cannot grant bail if there is an unacceptable risk that the accused person will fail to appear in court, commit a serious offence, endanger the safety of individuals or the community, or interfere with a witness. The risk is determined using a number of criteria, including the seriousness of the crime and the offender's history.
The purpose of bail is to allow someone who is accused of a crime but who has not yet been proven guilty to be free. Bail exists because, until someone has been convicted of a crime in a court of law, he or she is entitled to the presumption of innocence. Bail recognises that innocent people have the general right to be at liberty. Bail can include conditions and it should only be refused if there is a real risk that the accused will not appear at a trial, will harm a witness or will commit other significant offences. The new bail system that recently commenced preserved these fundamental principles and does not put the community at risk. The bill before the House is nothing more than a reaction to community fear brought on by media hype over three high profile cases. In one of the cases, the Office of the Director of Public Prosecutions appealed the decision and bail was refused—showing that the current system works.
While I understand community concern about crime and safety, Parliament's reaction should be considered and evidence based. The new bail system was in place for only a month before the Government called for a review—this is reactionary and not how responsible governments operate. The review was done by one person—a former Attorney General who introduced many of the flawed amendments that were overturned this year. He took only four weeks for his review and, I understand, did not consult with criminal justice agencies, legal bodies or civil liberties groups. The bill essentially sees the return of the presumption against bail with the onus placed on the accused, for a number of serious offences, to establish that his or her detention is not justified. Passage of the bill is likely to result in accused people who should be granted bail being refused it.
A 2008 assessment by the New South Wales Bureau of Crime Statistics and Research found that 9 per cent of defendants in Local Courts and higher courts who were refused bail were not found to be guilty. This is dangerously high and we should act to avoid the incarceration of innocent people. This figure does not include those who were found guilty but not awarded a sentence. Reversing the onus of proof and putting it onto the accused goes against article 9 of the International Covenant on Civil and Political Rights, to which Australia is a party. Article 9 requires that custody not be the default position. The onus should be on the party seeking to incarcerate someone who has not been proven guilty to prove why this is necessary.
Making the type of offence the basis for determining risk will make the bail system arbitrary. All crimes in a certain category will be treated the same regardless of the risk. I highlight the example provided by the New South Wales Bar Association of a wife who loses control and murders her husband after years of abuse being subject to the same tough test as a member of a crime gang who kills a rival gang member in cold blood over a drug deal.
For offences not defined as show cause offences the bail authority must determine whether the accused presents an unacceptable risk based on a number of bail concerns including the seriousness of the offence, strength of the prosecution, vulnerabilities and for some serious offences the views of the victim as well as what conditions could address any concerns. Under the existing system the wishes of the victim are already considered, as are factual circumstances such as whether the accused has links to organised crime.
I am strongly opposed to moving the fundamental principle that people are presumed innocent until proven guilty and that they have a general right to be at liberty from within the body of the legislation to the preamble. This relegation of human rights demonstrates the disturbing nature of this bill and the dangerous outcomes it will produce—that is, the incarceration of people who are innocent and who should not be awarded a sentence. Bail authorities should be able to make bail decisions based on the individual circumstances and risk and not on kneejerk reactions to media reports. This bill is a kneejerk reaction that plays to people's fears while doing nothing to protect the community. I oppose the bill.