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The legislation, known as the new Bail Act was introduced to the
NSW state parliament in May 2013. Bail is an accepted part of the
criminal justice system. It supports the rule of law by providing a
clear legal process for balancing the presumption of innocence with
the safety of the community when a person is arrested and charged.
The purpose of the Bail Act 2013 is to have regard to the
presumption of innocence and the general right to be at liberty. The
reason for why the Act was introduced was because the old Act, Bail
Act 1978 was unclear and the onus is placed on judges, whereas the
onus is now shifted to the defendant to show whether you can have
bail or not.
The Bail Act 2013 was amended by the Bail Amendment Bill 2014,
which introduced a new Division 1A where offences required an
accused to show cause why their detention was not justified. The
amendment also varied the unacceptable risk test so that the court
can decide whether or not to grant the accused bail. The Act was
further amended by the Bail Amendment Bill 2015 which was
assented on 5 November 2015, but is yet to be commenced. A new
test was introduced requiring that bail be refused unless it is
established that exceptional circumstances exist for applicant
charged with:
- An offence under s301J of the Crimes Act 1900 (membership
of a terrorist organization)
- Any other offence for which a custodial sentence may be
imposed, if the applicant has previously been charge with a
Commonwealth terrorism offence or an offence under 310J, or
is subjected to control order made under 5.3 Commonwealth
Crime Code (terrorism provisions.)
The new NSW bail laws introduced by the 2013 Act were aimed at
presenting a different test being applied in contrast to the
superseded Act. The test to be applied as it currently stands in the
2013 Act is whether there is an unacceptable risk. If there is then
the bail authority must decided whether there are any conditions
that can be imposed in order to mitigate such risk.
The bail authority must consider a number of matters which are set
out in [s.17(3)(a) (l)]. Important considerations include:
- The persons background
- Criminal history
- The nature and seriousness of the offence
- The strength of the prosecution case and various other
considerations
- Other considerations:
o The length of time the accused is likely to spend in
custody if refused bail.
o Whether the accused has a history of violence
o Any special needs of the accused
o The need for the accused to be free to prepare their
case and obtain legal advice
o The need to be free for any lawful purpose such as
attending a drug and alcohol rehabilitation program in
house.