Unacceptable Risks in the Crimes Act
By The Prison by SV Ivanov. Wikimedia Commons.
In March 2024, the New South Wales parliament passed the Bail and Crimes Amendment Bill 2024 (NSW) which resulted in amendments to the Bail Act 2013 (NSW) (‘Bail Act’), particularly s 22C. [1] S 22C, titled ‘Temporary limitation on bail for certain young persons in relation to certain offences’, introduces a temporary additional bail test for offenders aged 14 to 18 years old who have committed a serious break-and-enter offence or a motor vehicle theft while out on bail for the same offence. [2] S 22C introduces a new bail test where a bail authority must have a ‘high degree of confidence’ that the young offender will not commit any further offences while on bail. [3] If this confidence is not met, bail must not be granted. This demonstrates a departure from the previous New South Wales bail test.
The Previous Bail Test
The current bail test for adults and the previous test for young offenders was a two-step test involving the ‘show[ing of] cause’ and ‘unacceptable risk’. Firstly, the requirement to show the cause asks the accused to explain why their detention is not justified. [4] If the accused has sufficiently demonstrated this, the bail authority then applies the ‘unacceptable risk’ test. This test allows the bail authority to consider the risks of the accused under s 18 of the Bail Act. [5] They will often consider the accused’s background, nature of the offence, the strength of the prosecution's case, history of compliance or non-compliance, and many other contributing factors. [6] If there is an unacceptable risk identified, bail will be refused. However, if no unacceptable risk is identified, the bail authority will consider any conditions that must be imposed to address any bail concerns in compliance with s 20A. [7] However, the ‘show cause’ test is not applied to young offenders who have committed serious offences while on bail. Instead, bail authorities will be responsible for applying the ‘high confidence’ and ‘unacceptable risk’ test and determining whether it has been satisfied in each case. [8]
Concerns
S 22C continues to receive criticism from the Law Society of New South Wales and the New South Wales Legal Aid and Human Rights body, despite being subject to a 12 month sunset clause. [9] The Law Society of NSW considers s 22C to be ‘too wide’ and ‘a more punitive approach than that taken for adults for equivalent offenders’. [10] As the ‘high confidence’ test is untested, there are many concerns about the possibility of inconsistent application affecting young offenders' access to justice and fairness. [11] Attorney-General Michael Daley as clarified that the higher confidence test is intended to set an appropriately higher bar. The Court does not need to be certain of the risk of further offence, nor does it need to act as a predictive authority for reoffence. [12] Hopefully, within the next twelve months the NSW courts will provide a clear definition and assess the effectiveness of the ‘high confidence’ test in comparison to the ‘show cause’ and ‘unacceptable risk’ tests. With luck, the implementation of new strict bail laws in New South Wales will lead to a decrease in young people reoffending allowing for a safer community.
[1] Bail and Crimes Amendment Bill 2024 (NSW); Bail Act 2013 (NSW) s 22C (‘Bail Act’).
[2] Ibid s 22C.
[3] Ibid s 22C(1).
[4] Ibid s 16.
[5] Ibid s 18.
[6] Ibid s 16.
[7] Ibid s 20A; Judicial Commission of New South Wales, Bail <https://www.judcom.nsw.gov.au/publications/benchbks/local/bail.html>.
[8] Parliament of New South Wales, Hansard, ‘Bail and Crimes Amendment Bill 2024 Second Reading Speech’ (Online Report, 25 March 2024) <https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/HANSARD-1323879322-139003/link/27>.
[9] Bail Act (n 1) s 22C(5).
[10] Brett McGrath, ‘Letter to Legislative Council, Bail and Crimes Amendment Bill 2024’, (Web Page, 20 March 2024) <https://www.lawsociety.com.au/sites/default/files/2024-03/Letter%20to%20Members%20of%20the%20Legislative%20Council%20-%20Bail%20and%20Crimes%20Amendment%20Bill%202024%20-%2020%20March%202024.pdf>.
[11] Karl Hoeer, ‘Law Society warns youth bail reforms are ‘unprecedented’’ (Web page, 21 March 2024) <https://lsj.com.au/articles/law-society-warns-youth-bail-reforms-are-unprecedented/>.
[12] Nicholas Broadbent, Rose Khalilizadeh ‘The New Section 22C of the Bail Act 2013 Bail for Children Charged with certain serious offences’ (28 March 2024) <https://www.publicdefenders.nsw.gov.au/Documents/s22C-BAIL-ACT-280324.pdf>.
This article was originally published under the title ‘Unacceptable Risks and the Bail and Crimes Amendment Bill 2024 (NSW)’ in The Brief Edition 2, 2024 — Ceci n’est pas une loi.