Bail amendment - rushed reform can be flawed reform

Wednesday 22 June 2022

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The Law Society of NSW recognises that effective and fair bail laws need to strike a balance between reducing risk of further offending and recognising that an accused is innocent until a court finds them guilty or they so plead.

With certain exceptions, it has been usual practice for courts to remand in custody offenders likely to face a period of full-time incarceration at sentencing.

While the Government has described the introduction of these reforms as ‘swift and decisive’, the Law Society considers that insufficient time has been allowed to permit thorough and considered consultation and to ensure the reform is based on evidence.

Rushed reform can lead to flawed laws. The Law Society’s committees are made up of some of the most experienced practitioners in NSW and able to provide government with expert advice, particularly about unintended consequences.

The Law Society is very concerned about the potential for this reform to significantly increase the remand population, affecting many offenders who may well face jail, but are not the serious offenders the reform is intended to capture.

The change risks confusion regarding whether an offender “will be” sentenced to full-time detention, before any sentencing submissions or risk assessments being made. As a result, the remand rate could increase well beyond the intended effect of the amendment.

This proposed reform does not exclude children from its application, and may discourage early guilty pleas, given the length of time that it can take to prepare sentencing submissions and risk assessments. This would only add pressure to a criminal justice system still struggling with COVID-19 related backlogs.

The ability to divert into treatment or rehabilitation programs offenders who have not committed the serious offences that should result in a refusal of bail post-conviction could be severely affected. We are particularly concerned about the impact this may have on the imprisonment of Indigenous people, who are already over-represented in the justice system, and query the extent to which this reform is consistent with national reforms to Close the Gap.

The Law Society considers that judicial officers are best placed to make decisions on bail of offenders awaiting sentencing, having both heard all the evidence of the offence, and given both sides the opportunity to make detailed submissions. Should the legislation be referred to committee as part of its debate in Parliament, the Law Society’s experienced committee members will be glad to provide their expert input.