NSW Bar Association questions proposed reforms to bail legislation

The organisation suggested that aspects of the bill may not meaningfully address DV-related risks

NSW Bar Association questions proposed reforms to bail legislation

The NSW Bar Association has raised concerns regarding the Bail and Other Legislation Amendment (Domestic Violence) Bill 2024 that was introduced into NSW Parliament recently.

“The Bill’s amendment to the Surveillance Devices Act 2007 sensibly streamlines domestic violence-related prosecutions under section 9 of the Act”, NSW Bar Association President Dr Ruth Higgins SC said. “However, other elements of the bill are likely to result in incarceration without meaningfully addressing the risks that may arise in cases involving domestic violence”.

She explained that the “proposed expansion of the Bail Act’s show cause requirement to a ‘serious domestic violence offence’ when allegedly committed against an intimate partner will inevitably result in the lengthy incarceration of many accused persons who will be acquitted or have their matters withdrawn or not proven”. Higgins also pointed out that the introduction of the bill did not properly consider the effect on the remand population, “which is already at a historically high level”.

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“The latest statistics from the NSW Bureau of Crime Statistics and Research (BOCSAR) indicate that, in March 2024, the number of adults on remand was the highest on record. More adults were in custody for domestic violence offences in March 2024 than at any previous time and more than half were on remand. The number of Aboriginal adults on remand rose by 27.3% from December 2021 to December 2023. These reforms are likely to exacerbate the over-representation of Aboriginal people on remand”, she said.

Higgins suggested that the funds set aside for the incarceration of those on remand could be allocated to crime prevention programs or support services instead.

“The NSW Government should consider expanding its $230m emergency package to support more prevention programs and initiatives”, she said. “One way to reduce the amount of time accused persons spend on remand is to increase funding to NSW courts, which will reduce delays in the finalisation of criminal proceedings. This would also benefit witnesses and alleged victims”.

Higgins said that the bill restrains the discretion of bail authorities by introducing a presumption that electronic monitoring will be a condition of bail if the accused meets both the new show cause requirement and the unacceptable risk test.

“The NSW Government has proposed this electronic monitoring amendment without knowing how it will be implemented and without the necessary infrastructure. Electronic monitoring measures must be properly funded and consistently supplied by the NSW Government across the state. Further, the use and retention of any information obtained from electronic monitoring should be restricted to ensuring compliance with bail conditions”, she explained.

Higgins indicated that while the bill included positive proposals, she believed that the state government was “rushing reforms” without seeking considered advice. Nonetheless, she confirmed that the NSW Bar Association backed the inclusion for bail authorities to additional factors in the assessment of bail concerns.

These factors covered behaviour exhibited by the accused that may constitute domestic abuse and any available relevant views of the victim or family members in cases of alleged domestic violence against an intimate partner. The Bar Association said that such requirements ensured that bail authorities could appropriately evaluate the risks posed by an accused in domestic violence cases.

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