Academics will call it penal popularism or popular punitivism. A simpler description is: government on the run. Whatever you call it, the New South Wales government’s announcement on Tuesday of plans to again amend the Bail Act shows a government embracing bad law and doing so in the context of bad governance.
The NSW Bail Act was first introduced by Labor attorney-general Frank Walker in 1978. For more than three decades, NSW Parliament chopped and changed it to the point where it was unrecognisable. The multitude of amendments had created what the NSW Law Reform Commission called “one of the most convoluted and restrictive bail statutes in Australia”. It was almost impossible to comprehend, even for lawyers.
Within months of coming into office, the O’Farrell government commissioned the NSW Law Reform Commission to conduct a review, the results of which were tabled in Parliament in mid-2012. The new Bail Act moved away from the system of presumptions for and against bail that had made the old Bail Act so unwieldy and harsh. The new legislation came into force in May this year, as the end-product of a three-year process. The new legislation means an accused person will be denied bail if there is an “unacceptable risk” that the person would, if released on bail (a) fail to appear at court; (b) commit a serious offence; (c) endanger the safety of victims, individuals or the community; or (d) interfere with witnesses or evidence.
The new act was informed by the views of experts, based on three decades of judicial commentary. It is not surprising, therefore, that it has been supported by the people who deal with bail applications every day; both defence lawyers and prosecutors have welcomed the simple and clear approach the new act provides. It even includes a flowchart. When the new Bail Act was passed, it provided for the legislation to be reviewed after three years of operation.
However, the Baird government panicked as soon as the legislation came into force. Just over a month after operation commenced, the government drafted former Labor attorney-general John Hatzistergos in for the review job. An interesting choice — obviously designed to lock in Labor support.
But what was the justification for the review? A few sensational media articles. And what evidence did the review have to consider? Less than 30 days of the act in operation, and no evidence that anyone granted bail under the new act had committed an offence on bail, interfered with a witness or caused any other trouble. The one controversial decision — that of former bikie boss Hassan “Sam” Ibrahim being granted bail — was later reversed by Justice Peter Hidden in the Supreme Court.
Hatzistergos submitted his report and recommendations at the end of last month. Given there are only a handful of available decisions applying the new Bail Act, the evidence on which proper recommendations could be made simply doesn’t yet exist. The case law applying the new act is only in embryonic form. And yet, five days after receiving the report, the Attorney-General has announced that he would accept all of the Hatzistergos recommendations.
The Baird government’s paranoid handling of the Bail Act is all the more troubling because of where it is likely to head. The Hatzistergos recommendations suggest a return to the ‘old’ way of reversing the onus in favour of bail for certain offences, which will result in more people awaiting trial in jail — an experience that, in itself, can be a cause of future criminal behaviour. We should be particularly concerned about those who are refused bail but later acquitted or given non-custodial sentences.
Bail is not a reward for good behaviour. It is conditional liberty enjoyed until alleged offenders are proven guilty. That liberty, as Frank Walker said in 1978, is “one of the most fundamental and treasured concepts in our society”. When you play hot potato with bail, you’re playing with one of the bedrock foundations of our criminal law and justice system. That is no way to legislate, and certainly no way to govern.
Hannah Quadrio is a practising solicitor and the President of the NSW Society of Labor Lawyers.